In covering the issue of prosecutorial accountability no issue arises more frequently than the failure by the state to properly disclose exculpatory evidence. These failures, whether proven or merely alleged, are analyzed by courts and discussed by journalists via reference to the Brady line of cases, which establish the constitutional duty of prosecutors to turn over any “material” evidence favorable to the defense.

Brady and its progeny are what set out the legal test in litigating compliance with the rules of criminal discovery, post-conviction. A finding of a “material” Brady violation can lead to new trials for defendants or new sentencing hearings. But even a legal finding of a failure to disclose has no formal impact on the prosecutor him or herself.

Given the Supreme Court’s decisions in Imbler v. Pachtman and Connick v. Thompson, which set a virtually impossible bar for plaintiffs to meet in order to win civil damages against even the most egregious prosecutorial misconduct, one of the few remaining means of formal redress is through the filing of bar complaints against individual prosecutors for the violation of their ethical as opposed to constitutional duties.

For a variety of reasons–the reluctance of defense attorneys, as repeat players in the system, to file complaints against opposing counsel, and the slowness, inefficacy, and prosecutorial capture of many state bar associations–bar complaints against prosecutors have historically been rare, and any resulting punishment rare to the point of vanishing.

It is perhaps because of this very infrequency of bar complaints against prosecutors, much less successful ones, that has allowed a sleeping giant of prosecutorial ethics violations to remain hidden in plain sight.

That hidden giant is the fact that in many states and, as discussed below, arguably in the vast majority of states, a prosecutor’s ethical obligation to disclose favorable evidence is far broader than their legal obligation, and it has no “materiality” requirement attached to it. Meaning, in effect, that what we have come to accept as the standard practice of criminal prosecution in America is itself an ethical violation in much of the country.

Ethical vs. Legal Standards for Disclosure

In May we wrote about a little-noted opinion by the District of Columbia Court of Appeals. In Re Andrew J. Kline held that a prosecutor’s ethical duty to disclose exculpatory evidence was broader than his or her legal duty under the Brady line of cases.

The court specifically found that the prosecutor was required to disclose exculpatory evidence, “regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.”

It therefore held that a federal prosecutor, who had failed to turn over a witness statement, had violated the District of Columbia’s Rule 3.8(e), modeled on the ABA’s Rules of Professional Conduct, Rule 3.8(d).

In a “Formal Opinion,” entitled Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense (2009), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility wrote:

Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in Brady v. Maryland, which held that criminal defendants have a due process right to receive favorable information from the prosecution. This inaccurate description may lead to the incorrect assumption that the rule requires no more from a prosecutor than compliance with the constitutional and other legal obligations of disclosure, which frequently are discussed by the courts in litigation.

But, the ABA opinion goes on to say, this is in no way the case.

In particular, Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution (emphasis added).

In short, not only in the District of Columbia, but for all prosecutors in states that have adopted the ABA’s model rules and have no case law to the contrary, the “materiality” prong of standard Brady analysis is irrelevant to a prosecutor’s ethical duty to disclose exculpatory evidence.

Indeed, the prosecutor’s supposed determination of “materiality,” which requires him or her to succeed at the cognitively impossible task of accurately predicting the future, accurately deciding how information might be used by the defense, and, based on these suppositions, determining if the evidence will be “material” to the outcome of the trial, plays no role in compliance with the ABA’s cannons of ethics.

Furthermore, under the ABA’s “Formal Opinion” on the matter, it is not just exculpatory “evidence” of a physical or documentary nature that a prosecutor is ethically bound to disclose:

[The rule] also requires disclosure of favorable “information.” Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence or assist him in other ways, such as in plea negotiations. In determining whether evidence and information will tend to negate the guilt of the accused, the prosecutor must consider not only defenses to the charges that the defendant or defense counsel has expressed an intention to raise but also any other legally cognizable defenses. Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.

Under Rule 3.8(d), then, a prosecutor is ethically bound to disclose both exculpatory evidence and “favorable information,” a rule which, if actually followed, would transform the practice of criminal prosecution.

In fairness, it is important to note another difference between the Model Rules and the legal analysis under Brady. As the court in Kline puts it, “in order to violate Rule 3.8 [d], there must be evidence presented that a prosecutor intentionally failed to disclose exculpatory evidence. However, a Brady violation can be ‘inadvertent'” (emphasis added).

Furthermore, unlike Brady analysis, according to the ABA’s “Formal Opinion,”

Rule 3.8(d) requires disclosure only of evidence and information ‘known to the prosecutor.’ Knowledge means ‘actual knowledge,’ which ‘may be inferred from [the] circumstances.’ Although ‘a lawyer cannot ignore the obvious, Rule 3.8(d) does not establish a duty to undertake an investigation in search of exculpatory evidence.

In other words, when it comes to the ABA’s ethical analysis, a prosecutor is not functionally assumed to have in his or her possession the complete findings of police and investigative agencies, as they are under Brady.

Where Does the Rule Apply?

A Model Rule, of course, is one thing, and its adoption, much less case law surrounding it, is another.  Where, then, does the rule apply? While it is beyond the scope of this discussion to answer this question exhaustively, the District of Columbia Court of Appeals in Kline offers a helpful summary of the existing case law. Furthermore, the court notes that, “Only a few state courts have been forced to grapple with this specific issue,” making its possible application giant in scope.

According to the court in Kline, among the only five state courts, other than the District of Columbia, that have reached the question of whether a prosecutor’s ethical duty is broader than his or her legal duty, the results are mixed.

In City of Mandan v. Strata Corp., the North Dakota Supreme Court held that, “a prosecutor’s failure to comply with the duties imposed by Rule 3.8[d] should not be excused merely because, based upon the other evidence presented at trial, the result in the case would have been the same,” thus clearly coming down on the side of a broader ethical duty, and against a “materiality” requirement for finding an ethical violation.

In what may be a surprise to some, in In Re Jordan, the Supreme Court of Louisiana held that, “While the definition of materiality set forth in Kyles and its progeny may be seen as leaving a prosecutor with a degree of discretion, it does not.” Citing Justice Souter’s “eloquent statement in Kyles,” the court said that “a prosecutor anxious about ‘tacking too close to the wind will disclose a favorable piece of evidence’ and ‘will resolve doubtful questions in favor of disclosure.'”

The violation of Rule 3.8(d) by a prosecutor raises a great deal of concern to this Court. Rule 3.8(d) exists to ensure that the integrity of the prosecutorial arm of our criminal justice system is maintained. Moreover, prosecutors are in a unique position from other members of the bar as they are immune from civil liability under Imbler v. Pachtman, 424 U.S. 409, (1976). Neither are they realistically subject to criminal sanctions. Our research reveals only one instance in which a judge held a prosecutor in contempt of court for failing to disclose evidence.  Thus, absent consequences being imposed by this Court under its authority over disciplinary matters, prosecutors face no realistic consequences for Brady violations.

Less surprising from the Louisiana Supreme Court is that, following this passage, the justices settled on a deferred three month suspension of the prosecutor’s license as the appropriate remedy, meaning, in effect, that he never had to stop practicing law.

As Kline notes, the few other state supreme courts that have reached the question have gone in the other direction.

Most forcefully, the Supreme Court of Wisconsin has explicitly rejected the ABA’s 2009 “Formal Opinion,” holding that to adopt an ethical standard of disclose that is broader than the legal standard “is likely to generate confusion and could too easily devolve into a trap for the unwary.”

Supreme Courts in Colorado and Ohio have gone in the same direction as Wisconsin. What is important to note, however, is that this leaves 45 state supreme courts that have not spoken at all on the matter.

Given that we are discussing cannons of ethics rather than constitutional rules of criminal procedure, there are, of course, the myriad state ethics rules, each of which would need to be reviewed to see if they speak explicitly on this question. Virginia, for instance, rewrote “their disclosure rule for prosecutors, clarifying that the prosecutor’s ethical duty under that rule is not coextensive with the prosecutor’s legal duty under Brady” (emphasis added).

A full accounting of these state rules would go a long way to establishing just how large this sleeping giant of ethics violations is. What is clear, however, based on the ABA’s “Formal Opinion” and the District of Columbia decision in In Re Andrew J. Kline, is that the standard prosecutorial practice of disclosing only what evidence a prosecutor decides will be determinative of a trial that has yet to occur is, in fact, an ethical violation in a number of jurisdictions, and quite possibly in most jurisdictions.

For those willing to see what is hidden in plain sight, the consequences of this are profound.

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