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2243
Abstract
Innocent defendants sometimes plead guilty. This is a problem. Some suggest fixing this problem with a constitutional requirement that prosecutors disclose exculpatory evidence before a defendant pleads guilty. A circuit split has thus developed concerning whether Brady, which requires disclosure of exculpatory evidence, extends to the pre-plea context. The Supreme Court’s jurisprudence, however, likely bars a constitutional requirement for pre-plea disclosure of exculpatory evidence. Faced with this exigency, this Comment argues that contract law should form the legal basis for pre-plea disclosure. Specifically, the contract doctrine of constructive fraud provides a suitable remedy. While big boy clauses, which defeat constructive fraud claims, initially appear disastrous to this regime, such clauses are likely the redeeming quality of a constructive fraud solution. To safeguard innocent defendants from using big boy clauses, this Comment suggests open bargaining and modifications to judicial plea colloquies
Recommended Citation
Sanders, Brian
(2019)
"Exculpatory Evidence Pre-plea without Extending Brady,"
University of Chicago Law Review: Vol. 86:
Iss.
8, Article 3.
Available at:
https://chicagounbound.uchicago.edu/uclrev/vol86/iss8/3