Implicit Plea Agreements and Brady Disclosure
Prosecutors have a legal and an ethical obligation to disclose to the defendant plea agreements entered into to gain the cooperation of a key witness. Defense counsel typically will use the deal to argue that the cooperating witness's testimony is unreliable because the agreement gives the witness an incentive to fabricate. But what happens if the prosecutor only makes vague comments that the witness views as implying a reward of leniency? Is there an agreement if the witness offers to testify to gain a benefit and the prosecutor gives encouragement but no definite promise? If a prosecutor gives a witness lenient treatment after the witness testifies, should a court conclude that there was an implicit agreement that should have been disclosed? In this column, we review the law and ethics of prosecutorial disclosure and discuss various approaches courts are taking in answering these questions.
Place of Original Publication
22 (1) Criminal Justice 50 (2007)
Joy, Peter A. and McMunigal, Kevin C., "Implicit Plea Agreements and Brady Disclosure" (2007). Faculty Publications. 837.