A Higher Law

Illustration by Jim Frazier

Ethics rules trump even constitutional obligations when it comes to requirements that prosecutors disclose information to de­fendants if it might help them fight criminal charges.

That is the conclusion of the ABA Standing Committee on Ethics and Professional Responsibility in an opinion analyzing the scope of a key provision in Rule 3.8 of the Model Rules of Professional Con­duct. The rule sets out special ethics responsibilities of prosecutors. (The Model Rules are the basis for lawyer ethics codes in every state except California.)

In Formal Opinion 09-454 (July 8) (PDF), the ethics committee compares the constitutional obligation of prosecutors to disclose evidence to defendants with the even higher standard set forth in Model Rule 3.8(d).

“Courts as well as commentators have recognized that the ethical obligation is more demanding than the constitutional obligation,” states the committee in its opinion. And yet, the committee notes, the ethical obligations of prosecutors receive comparatively little recognition from courts and little action from disciplinary authorities.

There have been some notable recent exceptions to that pattern, and they help to illustrate the stakes for both sides in a criminal case when prosecutors fail to act appropriately under ethics rules as well as their constitutional obligations.

One case that produced much notoriety involved rape charges filed against members of the men’s lacrosse team at Duke University by Michael Nifong, the district attorney for Durham County, N.C. But after filing those charges, Nifong did not disclose to the defendants that their DNA samples did not match any of the DNA from unidentified males found on the alleged victim’s body and clothing. Nifong’s failure to disclose that information to the defendants not only resulted in the dismissal of all charges against them but also triggered a disciplinary action against him by the North Carolina State Bar that led to his disbarment in 2007.

Model Rule 3.8(d) and the constitutional duties that have been identified by the courts are based on the same essential principle: The obligation of prosecutors is not simply to win cases, but to ensure that justice is done.

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” states Com­­ment [1] to Model Rule 3.8. “This responsibility carries with it specific obligations to see that the de­fendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.”

But constitutional rulings by the courts and the Model Rules establish thresholds of conduct for pros­ecutors that differ in key ways.

The U.S. Supreme Court carved out the constitutional duties of prosecutors to share information with criminal defendants in a line of decisions that started in 1963 with Brady v. Maryland.

Under the court’s collective holdings in those cases, the Constitution requires a prosecutor to share with the defense any information that is favorable to the defense if it is “material”—generally interpreted to mean that it likely would lead to an acquittal. The duty also applies to evidence that would mitigate sentencing and support a defendant’s impeachment efforts. A prosecutor would be relieved of the obligation to disclose favorable and material information to the defense if a court issues a protective order. The duty of disclosure has been applied to state prosecutors under the due process clause.


The ethical duty of prosecutors set forth in Model Rule 3.8 goes a step further than the constitutional obligation to disclose that has been articulated by the courts. “The ABA adopted the rule against the background of the Supreme Court’s 1963 decision in Brady v. Maryland,” states the ethics committee in its opinion, “but most understood that the rule did not simply codify existing constitutional law but imposed a more demanding disclosure obligation.”

The roots of the current Model Rule go back to 1908, when the ABA adopted the Canons of Professional Ethics, the first national set of model standards of professional conduct for lawyers in the United States. Canon 5 stated that “the primary duty of prosecutors “is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.” (The Supreme Court first struck that theme in 1935, when it decided Berger v. United States.)

The key difference between the constitutional duty and the ethics standard, states the ethics committee’s opinion, is that Rule 3.8(d) “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.” Such evidence and information “includes both that which tends to exculpate the accused when viewed independently and that which tends to be exculpatory when viewed in light of other evidence or information known to the prosecutor.”

A prosecutor’s ethical duty of disclosure encompasses any favorable information, not just admissible evidence. “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,” states the opinion. The prosecutor must consider not only defenses that the defendant or counsel has expressed an intention to raise but any other legally cognizable defenses as well.

Like the prosecutor’s constitutional duty to disclose, the duty under Model Rule 3.8(d) would be relieved only by a court’s protective order. The ethical duty would continue to apply even if the defendant consents to the prosecutor’s noncompliance with the disclosure obligation under Rule 3.8(d).


The Ethics committee’s opinion emphasizes that timing of disclosures by prosecutors is critical. For disclosure of information to be timely, it must be made early enough that the information can be used effectively by the defense. This means that a prosecutor who knows of evidence or information favorable to the defense must disclose it as soon as reasonably practicable so that the defense can put it to meaningful use in planning its case.

Timely disclosure is particularly critical “to enable defense counsel to advise the defendant regarding whether to plead guilty,” states the opinion. “Because the defendant’s decision may be strongly influenced by defense counsel’s evaluation of the strength of the prosecution’s case, timely disclosure requires the prosecutor to disclose evidence and information covered by Rule 3.8(d) prior to a guilty plea proceeding, which may occur concurrently with the defendant’s arraignment.”

The disclosure obligation operates somewhat differently when it is applied to information relating to sentencing, states the opinion. First, the duty to disclose applies to information that might lead to a more lenient sentence. Second, disclosure must be made to the court as well as the defendant. Third, the information does not have to be disclosed before or during trial, but it must be disclosed in a reasonable time prior to sentencing. And fourth, a prosecutor may withhold privileged information in conjunction with sentencing.

The ethics committee states in its opinion that Rule 3.8(d) applies only to evidence and other information that is known to prosecutors. The rule “does not require prosecutors to conduct searches or investigations for favorable evidence that may possibly exist but of which they are unaware.” This qualification to the ethical duty “thus limits what might otherwise appear to be an obligation substantially more onerous than prosecutors’ legal obligations under other law,” the committee notes.

Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.

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