Prosecutors & Ethics: the duty to disclose in criminal cases.

Regular readers know that there’s only one rule that applies solely to a specific practice area.

Any guesses as to which practice area?

If you didn’t guess “prosecutors in criminal cases,” I suppose I need to fine-tune my headline writing.

It’s Rule 3.8 and it’s entitled “Special Responsibilities of a Prosecutor.” The rule sets out the ethical obligations of a “prosecutor in a criminal case.”

Nationally, there’s a perception, to say the least, that attorney regulators do not prosecute licensing cases against criminal prosecutors.  Professor Alberto Bernabe is a regular member of this blog’s #fiveforfriday Honor Roll.  He’s blogged extensively on the perception.  His posts on the topic are here.

That’s not today’s issue.  Today, I want to discuss Rule 3.8(d) and a prosecutor’s duty to disclose evidence in a criminal case.   The discussion flows from a case that I read about on Professor Bernabe’s blog.

The case is In the Matter of Hudson.  It’s a case in which, two weeks ago, the Indiana Supreme Court suspended a prosecutor for 18 months after concluding that the prosecutor violated Rule 3.8(d).  In brief . . .

. . . a deputy county prosecutor handled a case in which the defendant was charged with four counts of child molestation.  The victims were 2 of his step-children.  They are biological siblings.

Shortly before trial, one of the victims informed the prosecutor that he had lied to police about one of the counts.  He said that he did so at the urging of his biological father.  The prosecutor believed that the victim’s recantation was truthful, but did not disclose it to the defense.  Rather, at trial, the prosecutor did not ask the victim any questions about the count related to the recantation.

Still, through cross-examination and other witnesses, defense counsel elicited that the victim had informed the prosecutor that he’d lied about one of the counts.  Eventually, Indiana’s disciplinary authorities charged the prosecutor with violating several ethics rules, including Rule 3.8(d).

In relevant part, Rule 3.8(d) states that a “prosecutor in a criminal case shall:

  • “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense . . ..”

To some of you, the rule might sound familiar, stirring vague recollections of law school or the bar exam.  Those recollections might include thoughts of words like “Brady” or “Brady material.”

You’re right!

Brady v. Maryland is the case in which the United States Supreme Court, per Justice William O. Douglas, held that the prosecution’s withholding of exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment.”

So, what’s the point of referencing both Rule 3.8(d) and the Brady holding?

It’s to ask this question: is a prosecutor’s ethical duty under Rule 3.(d) co-extensive with or broader than a prosecutor’s Brady obligation?

Let’s go back to the Indiana case cited above.  In that case, the prosecutor contended that the victim’s recantation might be fodder for impeachment, but was not “material” to guilt or punishment. As such, she argued that Rule 3.8(d) did not require its disclosure, essentially contending that Rule 3.8(d) was, at most, co-extensive with Brady.

The Indiana Supreme Court chose not to decide the scope of Rule 3.8(d) vis-a-vis Brady.  Rather, it concluded that the prosecutor violated the rule regardless of whether interpreted as co-extensive with or broader than Brady.

While the Indiana Court did not decide the question, many others have weighed in.

In 2009, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454.  The Committee opined that Rule 3.8(d) does not include the “materiality” element of Brady and, therefore, is separate than, and necessarily broader than, the Brady obligation.

In June, the Harvard Law Review posted a blog on the topic. In my view, the post – Disentangling the Ethical and Constitutional Regulation of Criminal Discovery – is a fantastic resource on the debate as to whether a prosecutor’s duties under Rule 3.8(d) are broader than the duties under Brady.

As the post points out, while a majority of states have concluded that Rule 3.8 is broader than Brady, not all states have. For example, just last year, and in a case cited in the Indiana opinion, the Louisiana Disciplinary Board concluded that a 3.8(d) violation necessary turns on whether the evidence that was withheld was material, even though that word does not appear in the text of the rule.

The Indiana case also cites to a North Dakota decision that reached the opposite conclusion.  In Disciplinary Board v. Feland, the North Dakota Supreme Court held that “a prosecutor’s duty to disclose evidence under Rule 3.(d) is broader than the duty under Brady.”

I’ve been clear at CLEs.  My position is that Rule 3.8(d) is broader than Brady.  Of course, I’ll be clear here too: I do not know how disciplinary counsel views the rule, nor can I predict how a hearing panel or the Vermont Supreme Court would decide the issue. To me, however, there’s no question that the rule is broader than the constitutional obligation.

For one thing, the Brady court used very specific language: it violates due process not to disclose exculpatory evidence “where the evidence is material either to guilt or to punishment.”  Rule 3.8(d) does not use the word “material.”  Rather, it requires a prosecutor to disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.”

To me, the word “all evidence of information that tends to negate the guilt of the accused or mitigate the offense” means exactly that – all of it.  That is quantifiably more than evidence that is “material to guilt or punishment.”  Or, as ABA Formal Opinion 09-454 points out, it’s not up to the prosecutor to decide whether evidence is material to the defense.

For another, Rule 3.8(d) must mean something.  In other words, why would we draft a rule that says “a prosecutor shall abide by the Constitution?”

An oft-stated criticism of the conclusion that Rule 3.8(d) is broader than Brady is that it imposes inconsistent obligations on the prosecutor.  Umm, no it doesn’t.  Compliance with Rule 3.8(d) necessarily includes compliance with the Brady obligation.

This might not be a burning topic in Vermont.  Over the past 10 or 15 years, I don’t know that I’ve received more than 1 or 2 complaints alleging violations of Rule 3.8(d).  Still, it’s a topic that is worthy of discussion. And, in my view, Rule 3.8(d) of the Vermont Rules of Professional Conduct is broader than the obligation under Brady.


North Carolina Extends Rule Requiring Disclosure of Exculpatory Information to ALL Lawyers

It’s been quite a week for my Dad.

Not only did he share a great story that I recounted as I presented Justice Dooley with the VBA’s Matthew Katz Award for Judicial Independence, he also cued me into a new ethics rule in North Carolina.  (My dad moved to NC several years ago).

Most of you have a general understanding of the “Brady Rule” or “Brady violations.”*   Brady v. Maryland is the case in which the United States Supreme Court held that the government violates an accused’s right to due process when it withholds exculpatory evidence that is “material either to guilt or to punishment,” and regardless of whether the prosecutor acted in good or bad faith.

As do all states, Vermont has a disciplinary rule that imposes duties upon prosecutors.  It’s Rule 3.8.  Rule 3.8(d) requires a “prosecutor in a criminal case”

  • “[to] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by order of a tribunal.”

I’ve consistently stated that, in my opinion, Rule 3.8 is more broad than Brady.  The ABA’s Standing Committee on Ethics & Professional Responsibility is of the same opinion.  Similarly, in a disciplinary case decided in 2015, the D.C. Court of Appeals held that Rule 3.8 “requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements” of Brady and its progeny.

I bolded “prosecutor in a criminal case” for a reason.  In Vermont, and every other state, the disclosure requirement applies to the prosecutors who are prosecuting a case.  In 17 states, the rule applies to information discovered after a conviction.  But again, only to prosecutors.

Until now.

My dad mentioned it to me when we spoke two days ago.  I looked it up this morning, and he was right.  As the ABA Journal reports here, North Carolina adopted a rule that requires all lawyers, including lawyers in private practice, to reveal exculpatory evidence of which they become aware after a conviction.  More specifically, the rule, which is here, applies when

  • “a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted.”

The rule requires the lawyer to disclose the evidence or information to the appropriate prosecutorial agency, as well as to the state or federal public defender.

As more wrongful convictions come to light, I expect more states will follow North Carolina’s lead.

In any event, a good weekend for my dad.  And it might get better.  Not only is he rooting for North Carolina, he’ll win a not insubstantial amount of money in my pool if South Carolina wins it all.  He’s got things pretty well covered.


*Speaking of the Brady Rule and Brady violations, long-time readers know my feelings on Tom Brady, his role in the genesis of this rule, and the vast, repeated, and numerous ethics violations committed by Brady and the Patriots.