Though the Sixth Amendment guarantees the right to a trial by jury, fewer than ten percent of individuals going through the criminal legal system exercise that right. In fact, both in the federal and state systems, 97 and 94 percent of felony cases respectively result in plea bargains. The numbers are even higher in the land of misdemeanors.

There are many reasons for this phenomenon. Courts, prosecutors, and especially public defenders are overburdened and underfunded; there are an increasing number of criminal cases being filed each year; exorbitant minimum and maximum sentences (including enhancements for those with records) loom over and intimidate individuals into taking often much shorter—but still extremely long—prison sentences as part of a plea agreement. Combined with the fact that under many discovery rules, criminal defense attorneys receive most of the substantive information at the dawn of or during trial, these conditions push defendants towards pleas and away from asserting their Sixth Amendment right. In fact, it seems that “concealment is one of the major weapons” of the legal system and the “modus operandi of the criminal fact-finding process.”[1] Without knowing the extent of the evidence against them, defendants might not risk a trial and a correspondingly higher sentence.

In Florida and four other states, criminal defendants are entitled to depose witnesses, a list of which prosecutors must provide. Despite receiving push back, this policy is one of the many tweaks we could make to the criminal legal system to ensure defendants are not taking plea deals before they know the full extent of the testimonial evidence against them. In deposing witnesses, defense attorneys can parse through inconsistencies between witnesses’ testimonies well before deciding whether to go to trial and, importantly, preserve testimony by having a record of events within one or two months of the incident to use for impeachment. This step is crucial in a system not known for its efficiency, where trials occur many months or years following arrest, and witnesses can change or, guided by prosecutors, “sharpen” their testimony in that time.

Even if the client prefers a plea—whether to get out of jail or for other reasons—allowing defense attorneys to depose witnesses could give them a leg up in negotiations. Understanding the weaknesses of the prosecution’s case is, after all, the job of a defense attorney, who at trial must only show that there is a reasonable doubt in the evidence—not proof of innocence. Allowing defense attorneys to depose police officers and other critical witnesses before the prosecution can establish a theory of the case could also reduce the possibility of misconduct. The National Registry of Exonerations has found that more than half of all exonerations in the United States were at least in part due to official misconduct— or failing to turn over exculpatory evidence under Brady. Allowing depositions could limit the extent to which prosecutors restrict the flow of information. Defense attorneys could have a chance at obtaining that evidence themselves, without any kind of filter or interference by the state.

In Alleyne v. United States, the Supreme Court noted the “historic role of the jury as an intermediary between the State and criminal defendants.” Our rules of criminal procedure should reflect a desire to ensure criminal defendants have a fair chance at even getting to that point in a case. In a world in which criminal defendants are already at a huge disadvantage— not only because prosecutors have all the discretion, but also because most individuals accused of crimes are poor people of color —the fact that defense attorneys cannot prepare for trial with a full understanding of the case is not just an unfair disadvantage. It is a barrier to the constitutionally protected right to a trial by a full and impartial jury— a right we should be working to protect.


[1] Pre-Trial Disclosure in Criminal Cases, 60 Yale L.J. 626 (1951)