Split intensifies over prosecutors’ ethical disclosure duties

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Illustration by Brenan Sharp.

States remain split on whether a prosecutor’s ethical duties for disclosures in a criminal case should extend beyond their constitutional obligations set by the U.S. Supreme Court. Most recently, the Tennessee Supreme Court vacated a formal ethics opinion from its Board of Professional Responsibility that determined a prosecutor’s ethical duties were more expansive than those required under the Supreme Court’s decision in Brady v. Maryland (1963).

Tennessee Rule of Professional Conduct Rule 3.8(d), which is identical to the ABA Model Rule, determined: “The 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 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 a protective order of the tribunal.”

This obligation differs from the holdings in Brady and subsequent cases, such as Giglio v. United States (1972). In those decisions, the court carved out a rule finding that prosecutors violate the due process clause of the 14th Amendment if they withhold evidence from the defense in criminal cases that, if disclosed, likely would have been material to the outcome of the case.

Many states have grappled with the perceived or at least possible dissonance between Brady requirements for prosecutors in the criminal law context and the requirements of the rules of professional conduct. Some jurisdictions—such as the District of Columbia—have ruled that the standards are not the same and that the ethics rules often require prosecutors to disclose more evidence than would be required under the Brady line of cases. Courts in California, Texas and North Dakota have reached similar conclusions. The ABA Ethics Committee in its 2009 Formal Opinion 09-454 agreed that the ABA Model Rule 3.8(d) mandate was broader than Brady.

However, other jurisdictions—such as Colorado, Ohio, Oklahoma, Wisconsin and Louisiana—have interpreted their ethical rules as being co-extensive with the Brady line of cases. The Tennessee Supreme Court mirrored the more restrictive interpretations, finding the state’s rule 3.8(d) should be “co-extensive in scope with a prosecutor’s legal obligations under Brady.”

Different standards

In its 2018 ethics opinion, the Tennessee Board of Professional Responsibility determined that “[a] prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady,” following ABA Formal Ethics Opinion 09-454, which determined the standard 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.”

But after the Tennessee Board of Responsibility issued its ethics opinion, the U.S. attorneys for the Middle, Eastern and Western Districts of Tennessee requested the board to reconsider and rescind the opinion. The board appointed a committee to review the opinion. That committee recommended the opinion remain in place.

The Tennessee District Attorneys General Conference filed a petition with the Tennessee Supreme Court, asking the court to “stay the effectiveness” of the ethics opinion. On Aug. 23, the court did so in In Re: Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163.

The Tennessee high court wrote that it did so for policy reasons. “To say that our ethical rules require prosecutors to consider different standards than their constitutional and legal requirements has the potential to bring about a myriad of conflicts,” the court wrote. It cited with favor a Louisiana Supreme Court decision that warned about the imposition of “inconsistent disclosure requirements upon prosecutors.”

But Penny White, who directs the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law, finds the court’s argument unpersuasive, arguing a prosecutor’s ethical obligations should go beyond the constitutional requirements set out in Brady and should encompass all withheld evidence that may serve to mitigate a sentence.

“While the ABA and other courts, including federal courts in the 6th Circuit, are trending toward establishing higher expectations of prosecuting attorneys, likely in light of the increasing number of exonerations and findings of prosecutorial misconduct, this decision seems to be going in a different direction and has the potential to deteriorate confidence in the criminal justice system in the state of Tennessee,” White observes.

Different purposes, contexts

Other ethics experts, including attorney Lucian T. Pera, who served on the ABA’s Ethics 2000 Commission for five years, note the constitutional standards from Brady and the ethical rules serve different purposes and arise in different contexts. Decisions about whether a prosecutor committed a Brady violation typically occur during the direct appeal or post-conviction phase when the court’s focus is on the consequences of a prosecutor’s conduct and its effect on the rights of a defendant.

“More appropriately, the ABA Rules pertain to prosecutors’ disclosure duties, while the Brady decision looks at how on appeal to evaluate a failure to disclose and the appropriate remedy for violation of this obligation,” explains Ellen S. Podgor, a professor at Stetson University College of Law. “Brady was an appellate criminal case that examined a discovery violation after it occurred, providing us with a test to be used to determine if there needed to be a remedy for the violation. In contrast, the ABA Rules provide us with what needs to be disclosed to the defense at the time of trial or plea.”

Bruce Green, who helped draft the ABA Ethics Committee’s 2009 opinion, explains that there are many provisions in the rules of professional conduct that impose different requirements than existing legal standards.

“Most of the ethical rules are not just parroting back existing law or standards,” says Green, who directs the Louis Stein Center for Law and Ethics at Fordham University School of Law. “The very nature of the rules of professional conduct is that they are imposing additional standards on lawyers. There is nothing anomalous about having multiple legal standards applied to lawyers in general and to prosecutors in general.”

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