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and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend toward more liberal admission of hearsay in civil cases. But while federal courts criminal cases, the rules of criminal discovery show no sign of adapting to that reality. As a result, in comparison to other litigants, federal criminal defendants now face a litigation environment that features both minimum discovery and maximum admissible hearsay. Part II offers some proposals to address that imbalance by expanding a defendant's right to learn in advance what hearsay he must face, and his right to gather "ammunition" to contest that hearsay. Where appropriate, I have included proposals that would require the amendment of existing rules. But recognizing the practical difficulties facing any rule-making initiative, my principal focus is to suggest more effective means of applying Rule 16, the Jencks Act, and the Brady doctrine-the major discovery tools presently available to criminal defendants-to the task of contesting prosecution hearsay. This Article is not a critique of developments in the law of evidence, nor of the Court's application of the Confrontation Clause to hearsay. It is not an argument that more, or less, hearsay should be admitted in criminal cases. Instead, it takes as a starting point the undeniable reality that, for good or ill, today's federal criminal trials include a wider variety of admissible hearsay than ever before. My aim is to show how the process of criminal discovery can and should adapt to that reality to correct the hearsay-discovery balance when the government relies on hearsay.

Ninety-seven percent of federal convictions come from guilty pleas. Defendants rely on prosecutors for much of the information about the government's case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not generally require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence. This Article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide. Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence. The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime. But defendants who plead guilty effectively act as their own judge and jury. Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing. The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process. This Article proposes tailoring that test to the pre-plea discovery context. The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are clear rules that allow judges, before a guilty plea, to regulate prosecutors' decisions not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society. One hopeful development is that several district courts, pursuant to ...

In order for the promise of a strong and reliable criminal justice system to work properly in Virginia, there must be strong and prepared advocates on both sides of the process. The current process of discovery for criminal cases in Virginia fosters a culture of secrecy and unpreparedness that should not be tolerated in a system that has such power over the lives of every person in this state. It is far past the time for Virginia to move forward on criminal discovery reform. The current rules for criminal discovery in Virginia were first adopted in 1972. The rules do not require pretrial disclosure of witness statements, a list of witnesses, or police investigative reports. Over the past forty-four years, we have learned a great deal about the way our justice system falls short. DNA exonerations and wrongful convictions have demonstrated that mistakes happen more often than anyone would like to believe. The criminal justice system is not infallible but instead just as human as its creators. Our society has learned that there must be an appropriate counterweight to governmental power.

In order for the promise of a strong and reliable criminal justice system to work properly in Virginia, there must be strong and prepared advocates on both sides of the process. The current process of discovery for criminal cases in Virginia fosters a culture of secrecy and unpreparedness that should not be tolerated in a system that has such power over the lives of every person in this state. It is far past the time for Virginia to move forward on criminal discovery reform. The current rules for criminal discovery in Virginia were first adopted in 1972. The rules do not require pretrial disclosure of witness statements, a list of witnesses, or police investigative reports. Over the past forty-four years, we have learned a great deal about the way our justice system falls short. DNA exonerations and wrongful convictions have demonstrated that mistakes happen more often than anyone would like to believe. The criminal justice system is not infallible but instead just as human as its creators. Our society has learned that there must be an appropriate counterweight to governmental power.

This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country. The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that Act to supplement, and thereby possibly supercede, the discovery provisions of the Federal Rules of Criminal Procedure. Examination of freedom of information legislation in Canada discloses little likely impact on the law and practice of criminal discovery. At the federal level, broad law enforcement exemptions nullify the practical use of the Access to Information Act by criminal defendants. Provincial freedom of information legislation in Canada either exempts from disclosure material desired by criminal defendants, does not cover law enforcement agencies or prosecutorial authorities, or, to date, has not been used for criminal discovery. The language of Australia's federal and state freedom of information Acts appears to allow scope for criminal discovery-motivated requests by criminal defendants. Courts and administrative tribunals, however, have been hostile to freedom of information requests in aid of criminal discovery. Criminal defendants seeking broader disclosure than conventional criminal discovery allows have had much greater success under New Zealand's Official Information Act. The key New Zealand case interpreting the reach of that Act held that criminal investigations by the police, before criminal charges are laid, will be protected from disclosure; however, once criminal proceedings are begun, the Act has been interpreted in favor of disclosure. At this point, ...