Resolution:

WHEREAS, the American Legislative Exchange Council (ALEC) is committed to developing effective and fair criminal justice policies that create safe communities for citizens as well as strong state budgets; and

WHEREAS, in some states, existing criminal law discovery practices limit the production or sharing of information that is in the possession of the state to that which is deemed “material” or “exculpatory” or otherwise limited;

WHEREAS, the failure to disclose information promptly has resulted in depriving the accused of the opportunity to adequately prepare a defense and has resulted in substantial judicial inefficiency through postponement of trials and significant appeals processes;

WHEREAS, in some circumstances, these limited disclosure practices have led to instances of wrongful prosecution;

WHEREAS, ALEC recognizes the difficulty of requiring prosecutors and law enforcement officials to make continuous determinations of the “materiality,” potential defensive use, or value of all information in its possession;

WHEREAS, in recognition of this difficulty and inefficiency and seeking to enhance the reliability of outcomes in criminal cases, certain jurisdictions such as North Carolina and Texas have established successful “open file” discovery practices to ameliorate the need for prosecution and investigation teams to make such determinations;

WHEREAS, discovery practices should require that in criminal cases the accused receive all unprivileged information within the possession of relevant entities involved in the investigation and prosecution of a case promptly after arraignment and prior to a plea agreement and also require that if such information is not currently known, it shall be immediately disclosed upon its existence becoming known;

WHEREAS, discovery practices should ensure sufficient procedures exist by which courts can grant exceptions to disclosure should that be warranted in the interests of safety and justice on a case-by-case basis;

WHEREAS, discovery practices should also establish reasonable sanctions for the failure to meet these obligations in order to ensure compliance; and

WHEREAS, the critical goals of judicial efficiency, public safety, and due process require that a state ensure a full and fair disclosure of information in its possession to the accused promptly after arraignment and prior to the entering of a guilty plea; then

Therefore Be It Resolved that states should establish criminal law discovery practices that require the accused promptly receive all unprivileged information within the possession of relevant entities involved in the investigation and prosecution of a case promptly after arraignment and prior to a plea agreement except in the event of a judicially ordered exception and that include reasonable sanctions for the failure to meet this obligation.