A recent editorial in the New York Times called for an overhaul of the system of pretrial discovery in federal criminal cases. A recent report criticized the discovery failures of federal prosecutors in the prosecution of Senator Ted Stevens. A recent bill was introduced in Congress to restructure the penalty law with regard to prosecutorial failure to disclose exculpating evidence. These news events have focused attention on the way our federal system of justice deals with discovery and emphasize the radical differences between federal criminal and civil discovery.

The difference between the approaches to discovery between the criminal and civil systems has long been the subject of debate. Considering what is at stake—liberty versus dollars—it is remarkable that the criminal system is far less open to defense counsel having true access to discovery than the same counsel on a civil case. And the differences do not stop with discovery.

While all litigation is somewhat insensitive to the cost of representation, unlike their civil counterparts, criminal matters have few tools available to enable a rapid resolution or narrowing of issues. Federal judges sitting on criminal cases generally eschew participation in the process of early resolution, a reality greatly driven by their duty in sentencing. Similarly, the motion practice in federal criminal matters leaves many defense and/or prosecuting attorneys wondering if there could not be a more efficient way to narrow the issues.

“Stipulate nothing,” the defense battle cry, is countered by unrelenting plea positions and a process that drains assets on both sides, although the defendant has the lesser comfort at the end of the process, even if found not guilty. Many a defendant is financially ruined despite acquittal, suffers a loss of reputation, and has nowhere to go to regain a good name or lost fortune. In reality, as daily federal courts deal with varying degrees of discovery issues in federal criminal prosecutions, we witness both the U.S. attorneys and the defense counsel in a waltz of accusation and defense. All of these facts harm public confidence in the fairness of the process, raise questions about the wisdom of discovery delayed disclosure, and undermine the public’s perception of a U.S. attorney’s integrity and quest for justice versus thirst for convictions. At the outset, it is obvious that no system of justice is free of doubt about the even-handedness of the process or the prosecution team. Doubts over integrity issues assault all, including the defense team. Eliminating as many of the causes of these doubts as is consistent with a fair process and achieving a just result is a goal worth exploring.

It should be said that the civil side of justice is not free of many of the same shortcomings, but at least there are vehicles—ineffective as they sometimes may be—to foster early resolution and/or an economic process. Radical change is difficult to imagine and perhaps impossible to achieve, but the time seems ripe to consider an alternative approach to discovery and issues-narrowing in a criminal context.

Perhaps alternative dispute resolution (ADR) should be considered. ADR generally refers to informal dispute resolution processes in which opposing parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than they would find in a more formal judicial setting.

Historically, criminal courts had their own form of resolution where both sides would sit in chambers with the judge to discuss resolution. The courts moved toward disposition and, although frequently successful, were just as frequently perceived as tainting judicial impartiality if the attempt at resolution failed. On the civil side, similar concerns led to increasing use of magistrate judges or ADR, mediation and/or arbitration, mandatory fact finding, ombudsmen, special masters, etc.

Though often voluntary, ADR is sometimes mandated by the courts, which requires that disputants try mediation before they take their case to court. While compulsory ADR is probably not possible in a criminal context, even voluntary ADR has not happened in the criminal arena. One would think the criminal case should be open to an ADR process, but there has been no real acceptance of the concept.

Although ADR goes back hundreds of years, its use has increased rapidly in the United States in the civil context since the 1960s. The rise was occasioned by statutory provisions protecting individual rights as well as growing sensitivity to the inequities of discrimination, leading to increased dockets and the need for a vehicle to economically settle conflicts. These were powerful forces calling into question the ordinarily prohibitive cost of litigation. Because they helped relieve pressure on our overburdened court system, processes like mediation and arbitration soon came to be perceived as ways to deal with a variety of conflicts.

The climate today is similar. Criminal matters consume much of the docket, and the cost of thorough exploration of the defense of one’s liberty is daunting. One may doubt that a radical idea like ADR in a criminal context would find favor. But what is the price we pay when public confidence in the system’s integrity is questioned? Perhaps that price is too high when its cause could be eliminated by revisiting discovery and process with historically respected tools. ADR may offer a vehicle to preserve the integrity of the process of discovery and address early resolution even in criminal cases. Given that discovery decisions are made by a line prosecuting attorney, and a misjudgment or error can result in irreversible harm, injustice, or at the very least criticism, ADR could be utilized to provide an impartial eye looking at the issues of exculpating or not, discoverable or not, and complying with appropriate disclosure standards without a total overhaul of the discovery process. The same process, with a credible neutral party, might present an opportunity for both prosecutor and defendant to be more realistic in their assessments of an appropriate disposition than they would in the heat of battle.

There are, of course, difficult issues presented by the importation of a neutral into the criminal process. Objectors will raise issues ranging from constitutional separation of powers, non-delegable duties, security, and confidentiality, to mention only a few. All of these objections have had their counterparts in the civil arena. All have been overcome because of a compelling constitutional commitment to a judicial process that, while flawed, is essentially just. There is no reason the ADR process could not be adapted to the criminal arena. It is not enough that as a matter of pure faith we believe that criminal disputes are too unique to justify not taking this step. Recent events have assured us that the system must be revisited. In revisiting it, should we not look to a gradual change, utilizing tools that have been used in the courts for decades?

ADR does have its flaws, and we have chronicled them before, observing that among the many drawbacks and criticisms of pursuing alternatives to court-based adjudication is an appearance of “second-class justice.” Other perceived drawbacks include that ADR encourages compromise and that proceedings are private and are not in the public record. Perhaps the most serious concern is that in ADR, dollars matter.

Each of these, however, can be resolved by careful molding of the manner in which the process proceeds. Cost can be controlled by less than a formal “motion practice.” Decisions can be made documented and sealed or unsealed, as circumstances warrant, and compromise, where it is not valued, can simply not be engaged in reaching decisions.

In sum, ADR may not be the cure for the illness infecting the system and indeed may not be a wise interim solution, but a dialogue on ADR in a criminal context should begin. The constitutional guarantee of trial by jury might well be enhanced by a system whereby an independent voice is added to the pretrial process without implicating the ultimate judge.

Harold J. Ruvoldt is a partner at Hodgson Russ.