The Fragile Promise of Open File Discovery

66 Pages Posted: 3 Aug 2017

See all articles by Ben Grunwald

Ben Grunwald

Duke University School of Law

Date Written: February 1, 2017


Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis or systematic empirical testing.

This Article aims to fill both of these gaps in the literature. It begins by developing a dynamic theory of the effects of open-file on the behavior of police, prosecutors, defense attorneys, and defendants. The theory leads to the conclusion that the anticipated effects of open-file are fragile and contingent on a range of extrinsic institutional circumstances, including the distribution of cases in which defendants over- and under-estimate the strength of the government’s evidence, the availability of public defense funding, and the adaptive behavior of police and prosecutors in the collection of evidence and assembly of the file. The Article then examines the effects of open-file empirically using data from two states that have expanded their discovery statutes in the last decade. It finds relatively little evidence that defendants fared significantly better in terms of charging, plea bargaining, and sentencing or that the trial rate fell as a result of the legislation.

If the effects of open-file are indeed so fragile and contingent, then it may offer little utility as a standalone fix. We need, instead, to find the will to integrate discovery legislation into a package of reforms that increase funding for indigent defense and that establish stronger enforcement.

Keywords: Criminal Discovery, Open File, Brady

Suggested Citation

Grunwald, Ben, The Fragile Promise of Open File Discovery (February 1, 2017). Connecticut Law Review, Vol. 49, No. 3, February 2017, Duke Law School Public Law & Legal Theory Series No. 2017-62, Available at SSRN:

Ben Grunwald (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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