University of Chicago Law Review

Start Page



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

Included in

Law Commons