Vote: Publish pending major changes
My overall impression was that the article reads more like a policy paper than a piece of scholarship. I argue below that it needs a stronger theoretical framework.
Review of “Prosecutorial Perceptions of Discovery Reform on a Local Level”
Review by Elizabeth Webster, Assistant Professor of Loyola University Chicago
This is a well-written paper on an important and neglected topic: discovery processes. It asserts that prosecutors perceived both positive and negative outcomes from the implementation of the new discovery reform, Order 66. It also argues that in order to be more successful, lawmakers should have consulted prosecutors before implementing and that funding should have been provided upon implementation.
My overall impression was that the article reads more like a policy paper than a piece of scholarship; therefore, my comments will be directed at adapting an interesting and well-written paper into a criminology journal article. Revising for a legal journal might also be a good option and may not require extensive revisions. I have divided the review according to the sections of the paper below:
Abstract:
The abstract explains the research question (how do prosecutors make sense of discovery reforms?) and the methodology (35 interviews with prosecutors). You might also provide a sense of the theoretical framework or extant literature. In addition, could you provide some indication of the findings?
Introduction:
The intro needs a better sense of why prosecutors’ attitudes matter. Consider including theoretical perspectives about how professionals adapt to organizational change (e.g., Lynch, Barno, and Omori 2021, Rengifo, Stemen, and Amidon 2017) or legal scholarship about prosecutors’ cognitive biases as relevant to discovery (e.g., Burke 2006), or both. In general, the introduction could provide a stronger framework and a clearer sense of the direction of the paper. How can we understand the importance and context of these prosecutors’ thoughts and experiences? It seems to me that the issues of prosecutorial discretion and compliance could help. Some of the content about discretion that appears in the lit review could be moved to the introduction.
I also have a suggestion about a particular sentence that I stumbled over in this section:
there is little documentation regarding the empirical validity of many types of reform efforts, particularly those related to the timing of discovery disclosure.
I think you mean, “There is little empirical research regarding the validity that prosecutors ascribe to reform efforts… etc.” or something along those lines.
Lit review:
The lit review initially reads as a bit repetitive of the introduction, but then it provides a clear overview of Brady doctrine and discovery reforms. Indeed, this is important for understanding the findings later.
I agree with the authors that there is little research on how prosecutors adopt discovery reform. However, if we view it more broadly, as a study of how prosecutors adapt to reforms in general or even how criminal legal system actors adapt to reforms, we have a much broader body of literature to draw upon. I think this study could benefit from that wider lens.
The “prosecutorial discretion and workload” section provides some necessary context beyond the discovery processes. This is a nice overview, but it could go deeper. For example, it does not sufficiently acknowledge the legal scholarship on how cognitive biases can influence decisions about discovery specifically. How do prosecutors understand and apply concepts like “materiality” and “exculpatory evidence”? (if you decide to revise for a legal journal, this is especially important)
Methods:
It’s a good start, but I have some additional questions. First, can you provide more information about the prosecutors (e.g., race, gender, and years in office)? The sampling frame indicates a desire to reach prosecutors at all levels of the office. Was this achieved?
Most importantly, readers need to know more about the existing discovery law. Does it require open file discovery? Or are prosecutors still allowed to decide what is material? Is the timeline itself the only change to the old law? The required “certificates of compliance” are mentioned in the findings section. This might fit better if discussed earlier when the state law and its various measures are introduced.
It would also be useful to know if the State Prosecutors’ Association opposed the legislation when it was proposed. Research suggests that prosecutors’ associations often resist changes to the law that may limit prosecutorial discretion. Did the state prosecutors’ association have any response to this proposed legislation? This would help understand the line prosecutors’ responses as well. The article establishes that prosecutors were not consulted in drafting the legislation, but it would also be nice to know whether they actively tried to oppose its implementation.
In addition, could you tell us something more about the interview guide? How open-ended? What themes were probed? Is this part of a larger project that asked about other aspects of the job?
Finally, consider choosing a different pseudonym, as there is a Lake County DA’s office, and some readers might miss the mention that this is a pseudonym. See Eisenstein and Jacob 1977 as a model for how to do this. Alternatively, I love the title of the largest city – Coruscant of Star Wars! Maybe another Star Wars reference would work for the county as well.
Findings:
Findings are divided into three parts: “Perceptions of Implementation,” “Perceived Organization impacts,” and “Working with the Defense.” The quotes are well incorporated, and the counts provided throughout (e.g., “25 respondents perceived Order 66 to have created a significant influx of information”) are helpful and enhance credibility. The section is organized well.
However, in reading the section on “working with the defense,” I couldn’t help but wonder why the study does not also include interviews with defense attorneys (who are often more cooperative with researchers than prosecutors). Especially considering that the conclusion alludes to the need for further research incorporating defense attorneys, it would be good to acknowledge this directly. Defense perceptions and how they’re experiencing the law change would benefit the study's internal validity. Prosecutor respondents seem to agree that this law is advantageous to the defense to the point of being detrimental to prosecutors, but we don’t know whether or not the defense agrees. Therefore, findings about the nature of the relationship between the parties are one-sided.
The section ends with the observation that evidence from law enforcement that “might not make any substantial contributions to the case” is effectively delayed when police don’t share it with prosecutors. This is the type of observation that a defense attorney might challenge. The classic dilemma with Brady material is that the prosecutor is usually given the right to determine what would substantially contribute to the defense case. The defense argument is that prosecutors are not equipped to make that determination. Whether here or in the intro/ lit review, the authors should acknowledge that what is and is not material and exculpatory is subjective.
Discussion:
Two key takeaways from the study are discussed. First, policymakers should work with prosecutors to craft the legislation. Second, policymakers should fund the new legislation so prosecutors can implement it properly. These are useful observations that belong in the discussion section. However, they are more about the legislation/ lawmakers than prosecutors. If the research question is about how prosecutors make sense of the legislation, that could be answered more directly in this section. I recommend returning to discretion and compliance with the new law. This will be easier to do once a stronger theoretical framework for the paper has been established.
Best of luck. I hope this helps.
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