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Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution's widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court's hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery 's scope, increasing the degree and likelihood of prosecutorial sanctions, and altering the organizational dynamics that encourage prosecutors to withhold exculpatory evidence.
None of these approaches, however, addresses the issue of timing and its effect on prosecutors. Over the course of a prosecution, incentives to withhold evidence develop, and temptations to withhold it recur. Accordingly, popular reform efforts such as mandatory "open-file" discovery remain incomplete. Just like Brady itself, these well-intentioned reforms are destined to fall short of their goals so long as they fail to address criminal discovery 's temporal dimension.
This Article inquires how timing affects the prosecutor's decision to disclose or withhold exculpatory evidence in advance of a criminal trial. After laying out timing's importance, the Article then explores its policy and design implications for criminal discovery reform. By consciously addressing timing, reformers across state and federal jurisdictions can better guarantee the defendant's access to exculpatory evidence.
Introduction
Criminal discovery reform is ascendant.1 The strong law-and-order coalition that defended limited disclosure for nearly a century seems poised to disappear.* 2 State legislatures are increasingly adopting more generous discovery regimes, many of which impose earlier and more rigorous disclosure requirements on prosecutors.3 So-called "open-file" laws now require the prosecution to disclose the bulk of its files in advance of trial, and sometimes much earlier.4 Federal criminal discovery, although still comparatively narrow, has become a target for periodic bipartisan reform proposals.5 Across broad- and narrow-discovery jurisdictions alike, district attorneys and lead prosecutors have publicly acknowledged criminal discovery's importance in ensuring a fair and efficient criminal justice system.6
The impetus for this revolution has been the Innocence Movement's painstaking documentation of over two hundred instances in which prosecuting authorities have wrongfully convicted innocent individuals of serious crimes.7 As researchers have combed exonerees' case histories, they have observed instances in which prosecutors failed to disclose exculpatory evidence.8 Along with other well-publicized instances of nondisclosure, these findings have led researchers to conclude that the...