How to Marginalize Criminal Trials Without Pretrial Discovery

48 Pages Posted: 20 Apr 2018

See all articles by Darryl K. Brown

Darryl K. Brown

University of Virginia School of Law

Date Written: April 1, 2018


In the early twentieth century, both civil and criminal cases were resolved by trial roughly twenty percent of the time. In the early twenty-first, the trial rates for both dockets hover around two or three percent. The predominant explanation for “disappearing trial” in civil litigation is the advent of broad pretrial discovery initiated by the Federal Rules of Civil Procedure. Trials were once necessary not only to settle factual disputes but also to generate evidence of the facts. Discovery rules empowered parties to gather virtually all evidence before trial, which turned out to lead to the parties to settle in nearly all cases and pushed the trial toward obsolescence. The federal criminal justice system never adopted discovery rules remotely as broad as the civil model. For decades, neither did state systems; most still have not. What, then, explains criminal adjudication’s ability to match the civil system in replacing trials with settlements?

Law enforcement has considerable evidence-gathering authority wholly separate from pretrial discovery rules, and technology provides new forms of evidence where formerly none existed. Those make up for civil discovery tools to find or create evidence. But criminal process is lacks civil procedure’s other component — interparty disclosure obligations, which are crucial to facilitating settlements. And unlike civil discovery, evidence-gathering tools are provided equally to both parties. These deficiencies should undermine the criminal justice system’s capacity to achieve phenomenally high rates of negotiated dispositions, yet they do not. This article makes the case that the answer lies in the distinctively coercive practices of plea-bargaining that arose in the 1980s, which soon triggered a sharp rise in guilty pleas and decline in trials. It describes how hard-bargaining tactics effectively substitute for broad discovery as a means to achieve settlements, but at a cost. While civil litigation replicates the adversarial examination of evidence in the pretrial stage that formerly occurred at trial, criminal litigation often does not, resulting in settlements that are induced by the excessive risks attached to declining them and that rest on evidence that escapes evaluation by both courts and the defense.

Keywords: trials, discovery, criminal procedure, plea bargaining, adjudication, settlement

Suggested Citation

Brown, Darryl K., How to Marginalize Criminal Trials Without Pretrial Discovery (April 1, 2018). Virginia Public Law and Legal Theory Research Paper No. 2018-24, 55 Am. Crim. L. Rev. 155 (2018), Available at SSRN:

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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