n s t i t u t e
I
N Y C L A - C L E
C riminal L aw and
E thics :T he P resent S tate
of B rady , A V iew F rom
B oth S ides
Prepared in connection with a Continuing Legal Education course presented
at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
presented on Tuesday, April 23, 2013.
Program Co-Sponsor:
NYCLA’s Criminal Justice Section
P r o g r a m C h ai r & M o d e r a t o r :
Erin Flynn, Law Offices of Erin Flynn
P r o g r a m F ac u l t y :
Bruce Green, Fordham Law School and Director at Louis Stein Center for Law and Ethics; Hon.
Barry Kamins, Administrative Judge for Criminal Matters for the Second Judicial District and
for the Criminal Court of the City of New York; Timothy J. Koller, Executive Assistant District
Attorney, Richmond County; John P. O’Mara, Jr., Chief of the Convictions Integrity Unit, Assistant
District Attorney, Kings County; John Schoeffel, Legal Aid Society, Special Litigation Unit; Ellen
Yaroshefsky, Benjamin Cardozo School of Law
2 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS:
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
Board for a maximum of 2 Transitional & Non-Transitional credit hours: 2 Ethics
This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2
hours of total CLE credit. Of these, 2 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit
toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.
Information Regarding CLE Credits and Certification
Criminal Law and Ethics: The Present State of Brady—A View From Both Sides
April 23, 2013; 6:00 PM to 8:00 PM
The New York State CLE Board Regulations require all accredited CLE
providers to provide documentation that CLE course attendees are, in fact,
present during the course. Please review the following NYCLA rules for
MCLE credit allocation and certificate distribution.
i.
You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be
verified by the Program Assistant.
ii.
You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and
will be arranged in alphabetical order on the tables directly outside
the auditorium.
iii.
If you arrive after the course has begun, you must sign-in and note
the time of your arrival. The time will be verified by the Program
Assistant. If it has been determined that you will still receive
educational value by attending a portion of the program, you will
receive a pro-rated CLE certificate.
iv.
Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course,
you must sign-out and enter the time you are leaving. The time will
be verified by the Program Assistant. Again, if it has been
determined that you received educational value from attending a
portion of the program, your CLE credits will be pro-rated and the
certificate will be mailed to you within one week.
v.
If you leave early and do not sign out, we will assume that you left
at the midpoint of the course. If it has been determined that you
received educational value from the portion of the program you
attended, we will pro-rate the credits accordingly, unless you can
provide verification of course completion. Your certificate will
be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Criminal Law and Ethics: The Present State of Brady, A View From Both
Sides
Tuesday, April 23, 2013; 6:00 PM to 8:00 PM
Program Co-sponsor: NYCLA's Criminal Justice Section
Program Chair and Moderator: Erin Flynn, Law Offices of Erin Flynn
Faculty: Bruce Green, Fordham Law School and Director at Louis Stein Center for Law
and Ethics; Hon. Barry Kamins, Administrative Judge for Criminal Matters for the Second
Judicial District and for the Criminal Court of the City of New York; Timothy J. Koller,
Executive Assistant District Attorney, Richmond County; John P. O'Mara, Jr., Chief of the
Convictions Integrity Unit, Assistant District Attorney, Kings County; John Schoeffel, Legal
Aid Society, Special Litigation Unit; Ellen Yaroshefsky, Benjamin Cardozo School of Law
AGENDA
5:30 PM – 6:00 PM
Registration
6:00 PM – 6:10 PM
Introductions and Opening Remarks
6:10 PM – 8:00 PM
Panel Discussion: The Current State of Brady
•What is Brady?
•The relationship between Brady case law and the Ethics Rules
•The duty of prosecutors and compliance with case law and
Ethical Rules
•Brady moving forward: Lessons from wrongful convictions
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Criminal Law and Ethics: The Present State of Brady, A View From Both
Sides
Tuesday, April 23, 2013; 6:00 PM to 8:00 PM
Program Co-sponsor: NYCLA's Criminal Justice Section
Program Chair and Moderator: Erin Flynn, Law Offices of Erin Flynn
Faculty: Bruce Green, Fordham Law School and Director at Louis Stein Center for Law
and Ethics; Hon. Barry Kamins, Administrative Judge for Criminal Matters for the Second
Judicial District and for the Criminal Court of the City of New York; Timothy J. Koller,
Executive Assistant District Attorney, Richmond County; John P. O'Mara, Jr., Chief of the
Convictions Integrity Unit, Assistant District Attorney, Kings County; John Schoeffel, Legal
Aid Society, Special Litigation Unit; Ellen Yaroshefsky, Benjamin Cardozo School of Law
Table of Contents
Program Outline with Relevant Case Law, Ethics Rules , Reports and Citations
Brady v. Maryland. 373 U.S. 83 (1963)
New Perspectives on Brady and Other Disclosure Obligations” What Really Works?
By Ellen Yaroshefsky
ABA Model Rule 3.8, With Comments
ABA Criminal Justice Section Report to the House of Delegates August 2010 Re: Prosecutorial
Misconduct
ABA Formal Opinion 09-454 July 8, 2009, Prosecutor’s Duty to Disclose Evidence and
Information Favorable to the Defense
NY Rule 3.8: Special Responsibilities of Prosecutors and Other Government Lawyers, reprinted
from The New York Rules of Professional Conduct, Oxford University Press (Winter 2012).
Faculty Biographies
Program Outline with Relevant Case Law, Ethics Rules, Reports and Citations
1. What is Brady?
i. Kyles v. Whitley, 514 U.S. 419 (1995)
ii. U.S. v. Bagley, 473 U.S. 667 (1985)
iii. Brady v. Maryland, 373 U.S. 83 (1963) [included in materials]
iv. People v. Vilardi, 76 N.Y.2d 67 (1990)
b. Federal “materiality” standard
i. Kyles v. Whitley, 514 U.S. 419 (1995)
ii. Youngblood v. West Virginia, 547 U.S. 867 (2006)
iii. People v. Hunter, 11 N.Y.3d 1 (2008)
iv. Boyette v. Lefevre, 246 F.3d 76 (2d Cir. 2001)
c. New York “materiality” standard
i. People v. Vilardi, 76 N.Y.2d 67 (1990)
ii. People v. Scott, 88 N.Y.2d 888 (1996)
iii. People v. Mickel, 274 A.D.2d 325 (1st Dept. 2000)
iv. People v. Sibadan, 240 A.D.2d 30 (1st Dept. 1998)
d. Impeachment vs. exculpatory information/evidence
i. Smith v. Cain, 132 S.Ct. 627 (2012)
ii. U.S. v. Ruiz, 536 U.S. 622 (2002)
iii. U.S. v. Bagley, 473 U.S. 667 (1985)
iv. Giglio v. U.S., 405 U.S. 150 (1972)
v. People v. Steadman, 82 N.Y.2d 1 (1993)
vi. People v. Waters, 35 Misc.3d 855 (Sup. Ct., Bronx Co. 2012)
e. Can inadmissible information/evidence be Brady?
i. U.S. v Gil, 297 F.3d 93 (2d Cir. 2002)
ii. U.S. v Mahaffy, 693 F.3d 113 (2d Cir. 2012)
iii. U.S. v. Rodriguez, 496 F.3d 221 (2d Cir. 2007)
iv. People v. Hunter, 11 N.Y.3d 1 (2008)
v. E.g., People v. Baxley, 84 N.Y.2d 208 (1994)
f. When the prosecutor doubts the reliability of the information/evidence, or
has an explanation for it that would reconcile it with the rest of the
prosecution’s evidence; and/or when the information/evidence
simultaneously has both an inculpatory and an exculpatory effect
i. DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006)
ii. U.S. v. Rivas, 377 F.3d 195 (2d Cir. 2004)
iii. People v. Baxley, 84 N.Y.2d 208 (1994)
iv. People v. Garcia, 46 A.D.3d 461 (1st Dept. 2007)
v. People v. Lantigua, 228 A.D.2d 213 (1st Dept. 1996)
vi. People v. Waters, 35 Misc.3d 855 (Sup. Ct., Bronx Co. 2012)
g. Information/evidence that is not recorded in tangible form can be Brady
i. U.S. v. Rodriguez, 496 F.3d 221 (2d Cir. 2007)
ii. E.g., People v. Bond, 95 N.Y.2d 840 (2000)
iii. E.g., People v. Baxley, 84 N.Y.2d 208 (1994)
h. When must the judge perform an in camera inspection for possible
Brady?
i. U.S. v. Agurs, 427 U.S. 97 (1976)
ii. People v. Williams, 7 N.Y.3d 15 (2006)
iii. People v. Consolazio, 40 N.Y.2d 446 (1976)
iv. Matter of Andre W., 44 N.Y.2d 179 (1978)
i.
Does the “materiality” requirement apply in the pre-trial context when a
prosecutor makes disclosure decisions – or is it just an appellate
standard?
i. U.S. v. Olsen, 704 F.3d 1172, n.3 (9th Cir. 2013)
ii. U.S. v. Price, 566 F.3d 900, n.14 (9th Cir. 2009)
iii. U.S. v. Acosta, 357 F.Supp.2d 1228 (D.Nev. 2005)
iv. U.S. v. Sudikoff, 36 F.Supp.2d 1196 (C.D.Cal. 1999)
v. People v. Vilardi, 76 N.Y.2d 67 (1990)
2. Timing and Application of Brady Outside of Trial
a. Grand Jury Proceedings
i. People v. Lancaster, 69 N.Y.2d 20 (1986)
ii. People v. Mitchell, 82 N.Y.2d 509 (1993)
iii. People v. Reese, 23 A.D.3d 1034 (4th Dept. 2005)
b. Pre-Trial
i. Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001)
ii. U.S. v. Rodriguez, 496 F.3d 221 (2d Cir. 2007)
iii. U.S. v. Coppa, 267 F.3d 132 (2d Cir. 2001)
iv. People v. Cortijo, 70 N.Y.2d 868 (1987)
v. People v. Roberts, 203 A.D.2d 600 (2d Dept. 1994)
vi. People v. Robinson, 34 Misc.3d 1217(A) (Crim. Ct., Queens Co.
2011)
c. Plea Bargaining
i. Is Brady discoverable before a guilty plea?
1. U.S. v. Ruiz, 536 U.S. 622 (2002)
2. U.S. v. Persico, 164 F.3d 796 (2d Cir. 1999)
3. U.S. v. Avellino, 136 F.3d 249 (2d Cir. 1998)
4. People v. Delarosa, 48 A.D.3d 1098 (4th Dept. 2008)
5. People v. Philips, 30 A.D.3d 621 (2d Dept. 2006)
6. People v. Carter, 258 A.D.2d 409 (1st Dept. 1999)
7. People v. Jones, 44 N.Y.2d 76 (1978)
d. Suppression Hearing
i. People v. Williams, 7 N.Y.3d 15 (2006)
ii. People v. Geaslen, 54 N.Y.2d 510 (1981)
iii. People v. McCutheon, 96 A.D.3d 580 (1st Dept. 2012)
iv. People v. White, 200 A.D.2d 351 (1st Dept. 1994)
e. Post-Conviction
i. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52 (2009)
ii. Imbler v. Pachtman, 424 U.S. 409, n.25 (1976)
iii. Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007)
3. Relationship between Brady Case Law and Ethical Rules
a. ABA Model Rule 3.8(d), (g), (h) [included in materials]
b. ABA Standing Committee On Ethics and Professional Responsibility,
Formal Opinion 09-454 [included in materials]
4. Duty of prosecutors/ Compliance with Case Law and Ethical Rules
a. “Prosecutorial error” and “prosecutorial misconduct” (2010 ABA
Resolution 100B) [included in materials]
b. New York State Rule of Professional Conduct 3.8(b) [included in
materials]
i. Cone v. Bell, 556 U.S. 449, n.15 (2009)
ii. People v. Garcia, 46 A.D.3d 461 (1st Dept. 2007)
iii. People v. Waters, 35 Misc.3d 855 (Sup. Ct., Bronx Co. 2012)
c. Scope of duty to review information possessed by police or other
agencies
i. Kyles v. Whitley, 514 U.S. 419 (1995)
ii. People v. Santorelli, 95 N.Y.2d 412 (2000)
iii. People v. Wright, 86 N.Y.2d 591 (1995)
iv. People v. Hayes, 17 N.Y.3d 46 (2011)
d. Scope of duty to review information possessed by other prosecutors
i. People v. Steadman, 82 N.Y.2d 1 (1993)
ii. People v. Novoa, 70 N.Y.2d 490 (1987)
iii. People v. Valentin, 1 A.D.3d 982 (4th Dept. 2003)
e. “Chinese Wall”
i. The People v. Petros Bedi, 4107/96, NYLJ 1202592836531, at *1
(Sup., QU, Decided March 13, 2013)
5. Due Diligence of Defense
a. People v.Doshi, 93 NY2d 499 (1999)
b. U.S. v. Payne, 63 F3d 1200 (2d Cir 1995)
c. People v. McClain, 53 A.D.3d 556 (2d Dept. 2008)
6. Lessons from Wrongful Convictions
a. New York State Bar Association, Task Force on Wrongful Convictions,
Final Report (2009), p. 19-44
For additional information on Wrongful Convictions, see Final Report of the New
York State Bar Association’s Task Force on Wrongful Convictions and Related
Articles at
http://www.nysba.org/AM/Template.cfm?Section=Blogs1&TEMPLATE=/CM/Cont
entDisplay.cfm&CONTENTID=21310
Page 1
BRADY v. MARYLAND
No. 490
SUPREME COURT OF THE UNITED STATES
373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215; 1963 U.S. LEXIS 1615
March 18-19, 1963, Argued
May 13, 1963, Decided
PRIOR HISTORY:
CERTIORARI TO
THE COURT OF APPEALS OF MARYLAND.
DISPOSITION:
167, affirmed.
226 Md. 422, 174 A. 2d
SUMMARY:
After the petitioner had been convicted in a
Maryland state court on a charge of murder in
the first degree (committed in the course of a
robbery) and had been sentenced to death, he
learned of an extrajudicial confession of his
accomplice, tried separately, admitting the actual homicide. This confession had been suppressed by the prosecution notwithstanding a
request by the petitioner's counsel to allow him
to examine the accomplice's extrajudicial
statements. Upon appeal from the trial court's
dismissal of his petition for postconviction relief, the Maryland Court of Appeals held that
suppression of the evidence by the prosecution
denied petitioner due process of law, and remanded the case for a retrial of the question of
punishment only. (226 Md 422, 174 A2d
167.)
On certiorari, the United States Supreme
Court affirmed. In an opinion by Douglas, J.,
expressing the views of six members of the
Court, it was held that (1) the prosecution's
suppression of the accomplice's confession violated the due process clause of the Fourteenth
Amendment, but (2) neither that clause nor the
equal protection clause of that amendment was
violated by restricting the new trial to the question of punishment.
White, J., concurred in a separate opinion,
expressing the view that the Court should not
have reached the due process question which it
decided. He concurred in the Court's disposition of petitioner's equal protection argument.
Harlan, J., joined by Black, J., dissented,
expressing the view that because of uncertainty
in the pertinent Maryland law and because the
Maryland Court of Appeals did not in terms
address itself to the equal protection question,
the judgment below should have been vacated
and the case remanded to the Court of Appeals
for further consideration.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
Page 2
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
APPEAL §95
finality of state court judgment. -Headnote:[1]
A decision of the highest court of a state in
which the trial court's dismissal of a prisoner's
petition for postconviction relief was reversed
on the ground that suppression of the evidence
by the prosecution denied petitioner due process of law, and by which the case was remanded for a retrial of the question of punishment, not the question of guilt, is a "final
judgment" within the meaning of 28 USC
1257(3), under which the United States Supreme Court may review a judgment of a state
court only if it is final.
[***LEdHN2]
CONSTITUTIONAL LAW §840.5
due process -- prosecution's suppression of
accomplice's confession. -Headnote:[2]
The due process clause of the Fourteenth
Amendment is violated by the prosecution's
suppression--before and at the accused's state
trial on a charge of murder committed in the
course of robbery and after defense counsel's
request to allow him examination of the extrajudicial statements of his accomplice--of a
statement of the accomplice admitting that the
latter committed the actual homicide.
[***LEdHN3]
CONSTITUTIONAL LAW §840
due process -- prosecution's suppression of
evidence. -Headnote:[3]
The suppression by the prosecution of evidence favorable to and requested by an accused
violates due process where the evidence is material either to guilt or to punishment, irrespec-
tive of the good faith or bad faith of the prosecution.
[***LEdHN4]
TRIAL §45
relative functions of court and jury -- admissibility of evidence. -Headnote:[4]
Notwithstanding the provision in the Maryland Constitution that the jury in a criminal
case are the judges of law, as well as of fact,
under Maryland law it is the court and not the
jury that passes on the admissibility of evidence
pertinent to the issue of innocence or guilt of
the accused.
[***LEdHN5]
CRIMINAL LAW §74
postconviction proceedings -- construction
of state court judgment. -Headnote:[5]
A statement in a state court judgment reversing the trial court's dismissal of a prisoner's
petition for postconviction relief and remanding
the case for a retrial of the question of punishment, that nothing in an accomplice's confession suppressed by the prosecution could have
reduced the accused's offense below murder in
the first degree, is a ruling on the admissibility
of the confession on the issue of innocence or
guilt.
[***LEdHN6]
CONSTITUTIONAL LAW §500
CONSTITUTIONAL LAW §840.5
prosecution's suppression of accomplice's
confession -- restricting new trial to question of
punishment. -Headnote:[6]
Page 3
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
Neither the due process clause nor the equal
protection clause of the Fourteenth Amendment
is violated by a state court's restricting to the
question of punishment a new trial granted an
accused because of the prosecution's suppression of an accomplice's confession, where the
state court ruled that nothing in the suppressed
confession could have reduced the accused's
offense below murder in the first degree,
thereby ruling on the admissibility of the confession on the issue of innocence or guilt, and
under the law of the state this issue was for the
court, not the jury, to determine.
SYLLABUS
In separate trials in a Maryland Court,
where the jury is the judge of both the law and
the facts but the court passes on the admissibility of the evidence, petitioner and a companion
were convicted of first-degree murder and sentenced to death. At his trial, petitioner admitted participating in the crime but claimed that
his companion did the actual killing. In his
summation to the jury, petitioner's counsel
conceded that petitioner was guilty of murder
in the first degree and asked only that the jury
return that verdict "without capital punishment." Prior to the trial, petitioner's counsel had
requested the prosecution to allow him to examine the companion's extrajudicial statements.
Several of these were shown to him; but one in
which the companion admitted the actual killing was withheld by the prosecution and did
not come to petitioner's notice until after he had
been tried, convicted and sentenced and after
his conviction had been affirmed by the Maryland Court of Appeals. In a post-conviction
proceeding, the Maryland Court of Appeals
held that suppression of the evidence by the
prosecutor denied petitioner due process of law,
and it remanded the case for a new trial of the
question of punishment, but not the question of
guilt, since it was of the opinion that nothing in
the suppressed confession "could have reduced
[petitioner's] offense below murder in the first
degree." Held: Petitioner was not denied a fed-
eral constitutional right when his new trial was
restricted to the question of punishment; and
the judgment is affirmed. Pp. 84-91.
(a) Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution. Pp. 86-88.
(b) When the Court of Appeals restricted
petitioner's new trial to the question of punishment, it did not deny him due process or equal
protection of the laws under the Fourteenth
Amendment, since the suppressed evidence
was admissible only on the issue of punishment. Pp. 88-91.
COUNSEL: E. Clinton Bamberger, Jr. argued the cause for petitioner. With him on the
brief was John Martin Jones, Jr.
Thomas W. Jamison III, Special Assistant Attorney General of Maryland, argued the cause
for respondent. With him on the brief were
Thomas B. Finan, Attorney General, and Robert C. Murphy, Deputy Attorney General.
JUDGES: Warren, Black, Douglas, Clark,
Harlan, Brennan, Stewart, White, Goldberg
OPINION BY: DOUGLAS
OPINION
[*84] [***217] [**1195] Opinion of
the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BRENNAN.
Petitioner and a companion, Boblit, were
found guilty of murder in the first degree and
were sentenced to death, their convictions being affirmed by the Court of Appeals of Maryland. 220 Md. 454, 154 A. 2d 434. Their trials
were separate, petitioner being tried first. At
his trial Brady took the stand and admitted his
participation in the crime, but he claimed that
Page 4
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
Boblit did the actual killing. And, in his summation to the jury, Brady's counsel conceded
that Brady was guilty of murder in the first degree, asking only that the jury return that verdict "without capital punishment." Prior to the
trial petitioner's counsel had requested the
prosecution to allow him to examine Boblit's
extrajudicial statements.
Several of those
statements were shown to him; but one dated
July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution
and did not come to petitioner's notice until after he had been tried, convicted, and sentenced,
and after his conviction had been affirmed.
Petitioner moved the trial court for a new
trial based on the newly discovered evidence
that had been suppressed by the prosecution.
Petitioner's appeal from a denial of that motion
was dismissed by the Court of Appeals without
prejudice to relief under the Maryland [*85]
Post Conviction Procedure Act. 222 Md. 442,
160 A. 2d 912. The petition for post-conviction
relief was dismissed by the trial court; and on
appeal the Court of Appeals held that suppression of the evidence by the prosecution denied
petitioner due process of law and remanded the
case for a retrial of the question of punishment,
not the question of guilt. 226 Md. 422, 174 A.
2d 167. The case is here on certiorari, 371 U.S.
812. 1
1
the ruling below has seriously prejudiced
him. It is the right to a trial on the issue
of guilt "that presents a serious and unsettled question" ( Cohen v. Beneficial
Loan Corp., 337 U.S. 541, 547) that "is
fundamental to the further conduct of the
case" ( United States v. General Motors
Corp., 323 U.S. 373, 377). This question
is "independent of, and unaffected by" (
Radio Station WOW v. Johnson, 326
U.S. 120, 126) what may transpire in a
trial at which petitioner can receive only
a life imprisonment or death sentence. It
cannot be mooted by such a proceeding.
See Largent v. Texas, 318 U.S. 418,
421-422. Cf. Local No. 438 v. Curry,
371 U.S. 542, 549.
The [**1196] crime in question was
murder committed in the perpetration of a robbery. Punishment for that crime in Maryland
is life imprisonment or death, the jury being
empowered to restrict the punishment to life by
addition of the words "without capital punishment." 3 Md. Ann. Code, 1957, Art. 27, § 413.
In Maryland, by reason of the state constitution,
the jury in a criminal case are "the Judges of
Law, as well as of fact." Art. XV, § 5. The
question presented is whether petitioner was
denied a [***218] federal right when the
Court of Appeals restricted the new trial to the
question of punishment.
[***LEdHR1] [1]
Neither party suggests that the decision below is not a "final judgment"
within the meaning of 28 U. S. C. § 1257
(3), and no attack on the reviewability of
the lower court's judgment could be successfully maintained. For the general
rule that "Final judgment in a criminal
case means sentence. The sentence is the
judgment" ( Berman v. United States,
302 U.S. 211, 212) cannot be applied
here. If in fact the Fourteenth Amendment entitles petitioner to a new trial on
the issue of guilt as well as punishment
[*86] [***LEdHR2] [2]We agree with the
Court of Appeals that suppression of this confession was a violation of the Due Process
Clause of the Fourteenth Amendment. The
Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals
-- United States ex rel. Almeida v. Baldi, 195
F.2d 815, and United States ex rel. Thompson
v. Dye, 221 F.2d 763 -- which, we agree, state
the correct constitutional rule.
This ruling is an extension of Mooney v.
Holohan, 294 U.S. 103, 112, where the Court
Page 5
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
ruled on what nondisclosure by a prosecutor
violates due process:
"It is a requirement that cannot be deemed
to be satisfied by mere notice and hearing if a
State has contrived a conviction through the
pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty
through a deliberate deception of court and jury
by the presentation of testimony known to be
perjured. Such a contrivance by a State to
procure the conviction and imprisonment of a
defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a
like result by intimidation."
In Pyle v. Kansas, 317 U.S. 213, 215-216,
we phrased the rule in broader terms:
"Petitioner's papers are inexpertly drawn, but
they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his
conviction, and from the deliberate suppression
by those same authorities of evidence favorable
to him. These allegations sufficiently charge a
deprivation of rights guaranteed by the Federal
Constitution, and, if proven, would entitle petitioner to release from his present custody.
Mooney v. Holohan, 294 U.S. 103. "
[*87] The Third Circuit in the Baldi case
construed that statement in Pyle v. Kansas to
mean that the "suppression of evidence favorable" to the accused was itself sufficient to
amount to a denial of due process. 195 F.2d,
at 820. In Napue v. Illinois, 360 U.S. 264, 269,
we extended the test formulated in Mooney v.
Holohan when we said: "The same result obtains when the State, although not soliciting
false evidence, allows it to go uncorrected
when it appears." And see Alcorta v. Texas,
355 U.S. 28; Wilde v. Wyoming, 362 U.S. 607.
Cf. Durley v. Mayo, 351 U.S. 277, 285 (dissenting opinion).
[***LEdHR3] [3]We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates
[**1197] due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.
The principle of Mooney v. Holohan is not
punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty
are convicted but when criminal trials are fair;
our system of the administration of justice suffers when any accused is treated unfairly. An
inscription on the walls of the Department of
Justice states the proposition candidly for the
federal domain: "The United States wins
[***219] its point whenever justice is done its
citizens in the courts." 2 A prosecution that
withholds evidence on demand of an accused
which, if made available, [*88] would tend
to exculpate him or reduce the penalty helps
shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an
architect of a proceeding that does not comport
with standards of justice, even though, as in the
present case, his action is not "the result of
guile," to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.
2 Judge Simon E. Sobeloff when Solicitor General put the idea as follows in
an address before the Judicial Conference
of the Fourth Circuit on June 29, 1954:
"The Solicitor General is not a neutral, he is an advocate; but an advocate
for a client whose business is not merely
to prevail in the instant case. My client's
chief business is not to achieve victory
but to establish justice. We are constantly reminded of the now classic
words penned by one of my illustrious
predecessors, Frederick William Lehmann, that the Government wins its point
when justice is done in its courts."
Page 6
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
The question remains whether petitioner
was denied a constitutional right when the
Court of Appeals restricted his new trial to the
question of punishment. In justification of that
ruling the Court of Appeals stated:
"There is considerable doubt as to how
much good Boblit's undisclosed confession
would have done Brady if it had been before
the jury. It clearly implicated Brady as being
the one who wanted to strangle the victim,
Brooks. Boblit, according to this statement,
also favored killing him, but he wanted to do it
by shooting. We cannot put ourselves in the
place of the jury and assume what their views
would have been as to whether it did or did not
matter whether it was Brady's hands or Boblit's
hands that twisted the shirt about the victim's
neck. . . . It would be 'too dogmatic' for us to
say that the jury would not have attached any
significance to this evidence in considering the
punishment of the defendant Brady.
"Not without some doubt, we conclude that
the withholding of this particular confession of
Boblit's was prejudicial to the defendant Brady.
...
"The appellant's sole claim of prejudice
goes to the punishment imposed. If Boblit's
withheld confession had been before the jury,
nothing in it could have reduced the appellant
Brady's offense below murder in the first degree. We, therefore, see no occasion to retry
that issue." 226 Md., at 429-430, 174 A. 2d, at
171. (Italics added.)
[*89] If this were a jurisdiction where the
jury was not the judge of the law, a different
question would be presented. But since it is,
how can the Maryland Court of Appeals state
that nothing in the suppressed confession could
have reduced petitioner's offense "below murder in the first degree"? If, as a matter of
Maryland law, juries in criminal cases could
determine the admissibility of such evidence on
the issue of innocence or guilt, the question
would seem to be foreclosed.
But Maryland's constitutional provision
making the jury in criminal [**1198] cases
"the Judges of Law" does not mean precisely
what it seems to say. 3 The present status of that
provision was reviewed recently in Giles v.
State, 229 Md. 370, 183 A. 2d 359, appeal dismissed, 372 U.S. 767, where the several
[***220] exceptions, added by statute or
carved out by judicial construction, are reviewed. One of those exceptions, material
here, is that "Trial courts have always passed
and still pass upon the admissibility of evidence
the jury may consider on the issue of the innocence or guilt of the accused." 229 Md., at 383,
183 A. 2d, at 365. The cases cited make up a
long line going back nearly a century.
Wheeler v. State, 42 Md. 563, 570, stated that
instructions to the jury were advisory only,
"except in regard to questions as to what shall
be considered as evidence." And the court
"having such right, it follows of course, that it
also has the right to prevent counsel from arguing against such an instruction." Bell v. State,
57 Md. 108, 120. And see Beard v. State, 71
Md. 275, 280, 17 A. 1044, 1045; Dick v. State,
107 Md. 11, 21, 68 A. 286, 290. Cf. Vogel v.
State, 163 Md. 267, 162 A. 705.
3
See Dennis, Maryland's Antique
Constitutional Thorn, 92 U. of Pa. L.
Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be
Continued, 60 Md. St. Bar Assn. Rept.
246, 253-254.
[*90] [***LEdHR4] [4] [***LEdHR5] [5]
[***LEdHR6] [6]We usually walk on treacherous ground when we explore state law, 4 for
state courts, state agencies, and state legislatures are its final expositors under our federal
regime. But, as we read the Maryland decisions, it is the court, not the jury, that passes on
the "admissibility of evidence" pertinent to "the
issue of the innocence or guilt of the accused."
Giles v. State, supra.In the present case a
unanimous Court of Appeals has said that
Page 7
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
nothing in the suppressed confession "could
have reduced the appellant Brady's offense below murder in the first degree." We read that
statement as a ruling on the admissibility of the
confession on the issue of innocence or guilt. A
sporting theory of justice might assume that if
the suppressed confession had been used at the
first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt
might have been flouted by the jury just as
might have been done if the court had first admitted a confession and then stricken it from
the record. 5 But we cannot raise that trial
strategy to the dignity of a constitutional right
and say that the deprival of this defendant of
that sporting chance through the use of a
[*91] bifurcated trial (cf. Williams v. New
York, 337 U.S. 241) denies him due process or
violates the Equal Protection Clause of the
Fourteenth Amendment.
4 For one unhappy incident of recent
vintage see Oklahoma Packing Co. v.
Oklahoma Gas & Electric Co., 309 U.S.
4, that replaced an earlier opinion in the
same case, 309 U.S. 703.
5 "In the matter of confessions a hybrid situation exists. It is the duty of the
Court to determine from the proof, usually taken out of the presence of the jury,
if they were freely and voluntarily made,
etc., and admissible. If admitted, the jury
is entitled to hear and consider proof of
the circumstances surrounding their obtention, the better to determine their
weight and sufficiency. The fact that the
Court admits them clothes them with no
presumption for the jury's purposes that
they are either true or were freely and
voluntarily made. However, after a
confession has been admitted and read to
the jury the judge may change his mind
and strike it out of the record. Does he
strike it out of the jury's mind?" Dennis,
Maryland's
Antique
Constitutional
Thorn, 92 U. of Pa. L. Rev. 34, 39. See
also Bell v. State, supra, at 120; Vogel v.
State, 163 Md., at 272, 162 A., at
706-707.
Affirmed.
Separate
WHITE.
opinion
of
MR.
JUSTICE
1. The Maryland Court of Appeals declared, "The suppression or withholding
[***221] by the State of material evidence
exculpatory to an accused is a violation
[**1199] of due process" without citing the
United States Constitution or the Maryland
Constitution which also has a due process
clause. * We therefore cannot be sure which
Constitution was invoked by the court below
and thus whether the State, the only party aggrieved by this portion of the judgment, could
even bring the issue here if it desired to do so.
See New York City v. Central Savings Bank,
306 U.S. 661; Minnesota v. National Tea Co.,
309 U.S. 551. But in any event, there is no
cross-petition by the State, nor has it challenged the correctness of the ruling below that
a new trial on punishment was called for by the
requirements of due process. In my view,
therefore, the Court should not reach the due
process question which it decides. It certainly
is not the case, as it may be suggested, that
without it we would have only a state law question, for assuming the court below was correct
in finding a violation of petitioner's rights in the
suppression of evidence, the federal question he
wants decided here still remains, namely,
whether denying him a new trial on guilt as
well as punishment deprives him of equal protection. There is thus a federal question to deal
with in this Court, cf. Bell v. Hood, 327 U.S.
678, [*92] wholly aside from the due process question involving the suppression of evidence. The majority opinion makes this unmistakably clear. Before dealing with the due
process issue it says, "The question presented is
whether petitioner was denied a federal right
when the Court of Appeals restricted the new
trial to the question of punishment." After dis-
Page 8
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
cussing at some length and disposing of the
suppression matter in federal constitutional
terms it says the question still to be decided is
the same as it was before: "The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the question of punishment."
* Md. Const., Art. 23; Home Utilities
Co., Inc., v. Revere Copper & Brass,
Inc., 209 Md. 610, 122 A. 2d 109; Raymond v. State, 192 Md. 602, 65 A. 2d
285; County Comm'rs of Anne Arundel
County v. English, 182 Md. 514, 35 A.
2d 135; Oursler v. Tawes, 178 Md. 471,
13 A. 2d 763.
The result, of course, is that the due process discussion by the Court is wholly advisory.
2. In any event the Court's due process advice goes substantially beyond the holding below. I would employ more confining language
and would not cast in constitutional form a
broad rule of criminal discovery. Instead, I
would leave this task, at least for now, to the
rulemaking or legislative process after full consideration by legislators, bench, and bar.
3. I concur in the Court's disposition of petitioner's equal protection argument.
DISSENT BY: HARLAN
DISSENT
MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK joins, dissenting.
I think this case presents only a single federal question: did the order of the Maryland
Court of Appeals granting a new trial, limited
to the issue of punishment, violate petitioner's
Fourteenth Amendment right to equal protection? 1 In my opinion an affirmative answer
would [*93] [***222] be required if the
Boblit statement would have been admissible
on the issue of guilt at petitioner's original trial.
This indeed seems to be the clear implication of
this Court's opinion.
1 I agree with my Brother WHITE that
there is no necessity for deciding in this
case the broad due process questions
with which the Court deals at pp. 86-88
of its opinion.
The Court, however, holds that the Fourteenth Amendment was not infringed because it
considers the Court of Appeals' opinion, and
the other Maryland cases dealing with Maryland's constitutional provision making juries in
criminal cases "the Judges of Law, as
[**1200] well as of fact," as establishing that
the Boblit statement would not have been admissible at the original trial on the issue of petitioner's guilt.
But I cannot read the Court of Appeals'
opinion with any such assurance. That opinion
can as easily, and perhaps more easily, be read
as indicating that the new trial limitation followed from the Court of Appeals' concept of its
power, under § 645G of the Maryland Post
Conviction Procedure Act, Md. Code, Art. 27
(1960 Cum. Supp.) and Rule 870 of the Maryland Rules of Procedure, to fashion appropriate
relief meeting the peculiar circumstances of
this case, 2 rather than from the view that the
Boblit statement would have been relevant at
the original trial only on the issue of punishment. 226 Md., at 430, 174 A. 2d, at 171. This
interpretation is indeed fortified by the Court of
Appeals' earlier general discussion as to the
admissibility of third-party confessions, which
falls short of saying anything that is dispositive
[*94] of the crucial issue here. 226 Md., at
427-429, 174 A. 2d, at 170. 3
2 Section 645G provides in part: "If
the court finds in favor of the petitioner,
it shall enter an appropriate order with
respect to the judgment or sentence in the
former proceedings, and any supplemen-
Page 9
373 U.S. 83, *; 83 S. Ct. 1194, **;
10 L. Ed. 2d 215, ***; 1963 U.S. LEXIS 1615
tary orders as to rearraignment, retrial,
custody, bail, discharge, correction of
sentence, or other matters that may be
necessary and proper." Rule 870 provides
that the Court of Appeals "will either affirm or reverse the judgment from which
the appeal was taken, or direct the manner in which it shall be modified,
changed or amended."
3
It is noteworthy that the Court of
Appeals did not indicate that it was limiting in any way the authority of Day v.
State, 196 Md. 384, 76 A. 2d 729. In that
case two defendants were jointly tried
and convicted of felony murder. Each
admitted participating in the felony but
accused the other of the homicide. On
appeal the defendants attacked the trial
court's denial of a severance, and the
State argued that neither defendant was
harmed by the statements put in evidence
at the joint trial because admission of the
felony amounted to admission of guilt of
felony murder. Nevertheless the Court of
Appeals found an abuse of discretion and
ordered separate new trials on all issues.
Nor do I find anything in any of the other
Maryland cases cited by the Court (ante, p. 89)
which bears on the admissibility vel non of the
Boblit statement on the issue of guilt. None of
these cases suggests anything more relevant
here than that a jury may not "overrule" the trial court on questions relating to the admissibility of evidence. Indeed they are by no means
clear as to what happens if the jury in fact undertakes to do so. In this very case, for example, the trial court charged that "in the final
analysis the jury are the judges of both the law
and the facts, and the verdict in this case is entirely the jury's responsibility." (Emphasis
added.)
Moreover, uncertainty on this score is
compounded by the State's acknowledgment at
the oral argument here that the withheld Boblit
statement would have been admissible at the
trial on the issue of guilt. 4
4 In response to a question from the
Bench as to whether Boblit's statement,
had it been offered at petitioner's original
trial, would have been admissible for all
purposes, counsel for the State, after
some colloquy, stated: "It would have
been, yes."
In [***223] this state of uncertainty as
to the proper answer to the critical underlying
issue of state law, and in view of the fact that
the Court of Appeals did not in terms [*95]
address itself to the equal protection question, I
do not see how we can properly resolve this
case at this juncture. I think the appropriate
course is to vacate the judgment of the State
Court of Appeals and remand the case to that
court for further consideration in light of the
governing constitutional principle stated at the
outset of this opinion. Cf. Minnesota v. National Tea Co., 309 U.S. 551.
REFERENCES
Annotation References:
1. Suppression of evidence by prosecution in
criminal case as vitiating conviction.
33
ALR2d 1421.
2. Conviction on testimony known to prosecution to be perjured as denial of due process. 2 L
ed 2d 1575, 3 L ed 2d 1991.
3. Obtaining conviction on perjured testimony
known to prosecuting authorities to be perjured,
as denial of due process. 98 ALR 411.
YAROSHEFSKY 31-6. DOC
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FOREWARD: NEW PERSPECTIVES ON BRADY
AND OTHER DISCLOSURE OBLIGATIONS:
WHAT REALLY WORKS?
Ellen Yaroshefsky*
I NTRODUCTION: SCOPE OF THE SYMPOSIUM
Nearly fifty years after the Supreme Court decided Brady v.
Maryland, state and federal criminal justice systems appear less than
adequate in assuring that prosecutorial disclosure obligations are met.
Recent high-publicity cases have highlighted failures to disclose
fundamental exculpatory evidence to the defense, whether
intentional or not. Most notably, the reversal of the prosecution of
Senator Ted Stevens led the Department of Justice (DOJ) to
undertake an examination of its disclosure policies and practices.1
Both before and after the DOJ examination, there have been
repeated efforts on the state and federal level to amend court rules
and statutes to clarify or expand disclosure obligations. Some state
prosecutor’s offices have adopted versions of “open file policies”
that provide a wide range of information to the defense. However,
few offices have gathered data or performed system-wide studies of
the effect of these disclosure policies.
Long the subject of discussion, debate, scholarly articles, and
conferences, prosecutorial disclosure obligations increasingly have
* This Symposium met and surpassed the sponsor’s collective expectations on many levels,
including the participation of a remarkable assembly of professionals, their productivity,
collegiality and commitment to an improved process. We thank all of the participants. I owe a
debt of gratitude to my tireless and efficient Symposium coordinators, Jenny May and Chris
Quirk, and to Marisa Harris and Ari Fontecchio, the Cardozo Law Review Symposium Editor
and Editor-in-Chief, who insured that the Symposium and this symposium issue met the highest
standards of their future profession.
1 In 2009, there were significant federal cases of failure to comply with disclosure
obligations that received public attention. United States v. Grace, No. CR 05-07-M-DWM (D.
Mont. Apr. 23, 2009) [NOTE: I WAS UNABLE TO FIND THIS DATE IN THE DOCKET. IT
IS NOT CLEAR IF ANOTHER DATE IS ACTUALLY BEING REFERRED TO.]I am not sure
but this case is reported out of Montan ; Unites States v. Jones, 620 F. Supp. 2d 163 (D. Mass.
2009); United States v. Zhenli Ye Gon, 287 Fed. Appx. 113 (D.C. Cir. 2008); United States v.
Shaygan, 661 F. Supp. 2d 1289 (S.D. Fla. 2009). Judge Sullivan’s opinion in the Ted Stevens
case is United States v. Stevens, No 08-231, 2009 U.S. Dist. LEXIS 125267 (D.D.C. Apr. 7,
2009).
101
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become the focus in wrongful convictions cases. For example, the
Innocence Project documented that in a high percentage of
exonerations where prosecutorial practice was, at least, part of the
cause of the wrongful conviction, failure to produce exculpatory
evidence was a major factor. Whether these wrongful conviction
cases signal that prosecutorial errors are mistakes or intentional acts
and whether instances of non-disclosure are episodic or endemic,
these cases certainly suggest the need for an examination of systemic
causes and remedies. What are the best systems for information
management? What kinds of training, oversight, and accountability
are the best practices? How do state and federal criminal systems
encourage a commitment to these practices? This Symposium—New
Perspectives on Brady and Other Disclosure Obligations: What
Really Works?—explored these issues in a unique framework for the
criminal justice system—by examing lessons from the fields of
medicine, business, psychology, and policing as to their methods for
managing information, optimizing performance, and insuring quality.
For example, the implementation of quality control techniques in
hospitals and clinics has significantly improved information systems,
resulting in fewer errors in diagnosis and treatment.
The
development of training and supervision models throughout the
medical field has increased awareness and remedied defects,
improving quality. This Symposium sought to examine the extent
to which these lessons are applicable to the criminal justice system 2 .
The stated goals of the Symposium were: (1) the development
of the best practices to increase the reliability of results obtained by
guilty pleas, trials, and post conviction proceedings; and (2) to
optimize effective training, supervision, and control mechanisms for
managing information within prosecutors’ offices.
The Symposium proceeded within the following framework:
1. There is a lack of clarity as to the meaning of a “Brady
obligation” and as to the required scope of disclosure.
Constitutional law, statutes, criminal procedure rules, court
rules, and ethics rules all have varying definitions of the
obligation. Additional complications arise due to differences
between federal and state law, within federal jurisdictions,
among states and localities, and even within individual
prosecutors’ offices.
2
This conference addressed these issues for the prosecution function. Comparable
issues for defense counsel training, supervision, management and quality control
will be addressed at a future conference.
YAROSHEFSKY 31-6. DOC
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FOREWORD
103
2. There is a lack of clarity as to the timing of the disclosure
obligation. In some jurisdictions, material is turned over
prior to a guilty plea, but in most places it is not. This is
significant because more than 90% of defendants in federal
and state courts plead guilty, thus, they do so without the
benefit of disclosure. We assume that we have a functioning
adversarial system that tests the quality of evidence through
cross examination, but, in fact, our system is functionally an
administrative one, where the decisions as to charging and the
ultimate conclusion of a case are made essentially within the
executive function. 3
3. Brady is a hidden problem for which it is impossible to gather
accurate data because attorneys raise most Brady or other
disclosure issues at trial, on appeal, or in post conviction
proceedings. Since most cases result in guilty pleas, it is very
difficult to gather data and to actually study the extent to
which disclosure issues are a significant problem.
4. This Symposium and the profession are unlikely to reach a
consensus as to the extent to which disclosure problems exist.
a. Prosecutors believe that defense attorneys accuse
them all too often of intentional violations of
disclosure obligations when, in fact, most disclosure
failures are the result of negligence that may not be
the fault of an individual prosecutor. Additionally,
prosecutors believe that, to the extent it is a problem,
the problem arises as a result of caseload demands,
non-receipt of information from the police, or the
inability to anticipate a particular defense.
Therefore, most prosecutors believe that disclosure
errors are an episodic problem.
b. Defense lawyers have a very different view and often
find that problems of non-disclosure are endemic to
3 Gerard E. Lynch, Screening Versus Plea Bargaining: Exactly What Are We Trading Off?,
55 STAN. L. REV. 1399, 1404-05 (2003) (“Nor does it affect the identity of the key
decisionmaker: the prosecutor rather than the court. . . . Though the defendant may plead guilty
to the original charge, he is still, as in the present system, pleading guilty to whatever offense
the prosecutor, after his own private adjudication, insists on. There is no public airing of the
evidence against the defendant or of his defenses, and no possibility of an independent public
assessment of the justice of the outcome. Such an administrative determination of guilt by
executive-branch officials may be a departure from traditional due process ideals. It is not,
however, intrinsically unfair.”).
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the system.
c. Scholars and practitioners who have studied the
criminal justice system believe that there are very few
consequences for the prosecutor’s failure to disclose
certain information.
A significant goal of this Symposium, therefore, was to shift the
conversation from individual, blame-based rhetoric to one of
working in concert to examine systemic change that would improve
the disclosure process.
I.
T HE SYMPOSIUM’S PROCESS AND ORGANIZATION
Nine months in advance of the Symposium, we sought the cosponsorship of six organizations. These included the Louis Stein
Ethics Center at Fordham Law School, the Center on the
Administration of Criminal Law at New York University Law
School, the Criminal Justice Section of the American Bar
Association, the Justice Center of the New York County Lawyers’
Association, the National District Attorneys’ Association, the
National Association of Criminal Defense Lawyers, and the Jacob
Burns Ethics Center at Cardozo Law School.
The co-sponsors assisted in planning and in securing the
attendance and participation of prosecutors, judges, defense lawyers,
and academics from throughout the country. The organizers asked
each speaker to offer ideas from their discipline and practice area on
how to improve and what lessons could be adapted to the disclosure
processes of the criminal justice system. A summary of their
speeches is included in this volume. The morning speakers were:
• Hon. Charles Hynes, Kings County District Attorney, New
York : Welcome
• Dr. Gordon Schiff: Brigham and Women’s Hospital, Harvard
Medical School, Lessons from Risk Management of Diagnosis
Errors in Medicine
• Barry Scheck: CoDirector, The Innocence Project, Benjamin
Cardozo School of Law, Reflections on Prosecution and
Policing from Wrongful Conviction and Civil Rights Cases
• Dr. Maria Hartwig: John
Jay
College
of
Criminal
Justice,Lessons from Cognitive Scientists
• Lou Reiter: Police Practices Expert, Information
Management and Control in Policing
• Dr. Larry Richard:
Organizational
and
Management
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Consultant, Hildebrant Lessons from Risk Management in Law
Firms and Corporations
Their presentations were followed by a panel response by Hon.
Nancy Gertner of the U.S. District Court for the District of
Massachusetts; Hon. Susan Gaertner, Ramsay County Attorney for
St. Paul Minnesota; Anthony Ricco, defense attorney in New York;
and Zachary Carter, former U.S. Attorney for the Eastern District of
New York and a partner at Dorsey and Whitney in New York. 4
The afternoon presentations were:
• District Attorney John Chisholm, Milwaukee, Wisconsin :
Effective State Prosecution Systems
• First Assistant District Attorney, A. Terri Moore, Conviction
Integrity Unit, Dallas, Texas: Post Conviction Issues and
Management Systems
• Professor Rachel Barkow, Center on the Administration of
Criminal Law, NYU School of Law : Lessons from Good
Government Practices and Institutional Design
• Professor Barry Schwartz: Swarthmore College, Professional
Self Policing
The morning format was followed for the afternoon
presentations as well. The panel response was by Hon. Charles J.
Hynes, Kings County District Attorney; Hon. John Gleeson, United
States District Court for the Eastern District of New York; Gerald
Lefcourt, Law Offices of Gerald Lefcourt, New York; Hon. Mathias
Heck, District Attorney for Montgomery County, Dayton Ohio; and
Professor Amy Wrzesniewski, Yale School of Management.
The Symposium also featured a talk by guest speaker Cyrus R.
Vance, Jr., Manhattan District Attorney (then the District
Attorney.-elect, who discussed his plans for the District Attorney’s
office and took questions from attendees. Mr. Vance also had
members of his transition team attending the Symposium to glean
ideas for disclosure solutions that could be used in his new
administration.
The second day of the Symposium was by invitation to
participate in one of six groups charged with examining a specific
aspect of disclosure in prosecutorial practice. These groups were:
Prosecutorial Disclosure Obligations, the Disclosure Process,
Training and Supervision, Systems and Culture, Internal Regulation,
and External Regulation. Group leaders and reporters were selected
six months in advance of the Symposium and asked to provide a
detailed overview and discussion guide for their groups. Ten to
4 The Department of Justice declined to participate in this Symposium. Mr. Carter, as well
as other attendees from US Attorneys Offices and the federal bench, provided insight into the
government’s view of disclosure issues in various federal jurisdictions
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twelve members were selected for each group, keeping in mind
diversity among fields of practice and geographical distribution.
Each group had at least five prosecutors. The detailed guides were
provided to group members in advance of the Symposium.
At the conclusion of the second day, each of the groups’
reporters presented an overview of the areas of agreement, areas of
diverent views, and issues for future discussion.
The Articles that follow are the summaries of presentations, the
group reports of the conference and articles by scholars that deepen
and reflect upon aspects of the conference. The first Article, Voices
from the Field, presents a cross-professional approach from the
speakers that addressed
information systems in the medical,
psychological, and policing professions.
The speeches and
presentations included in Voices from the Field lead to the questions
and issues addressed by the working group reports contained in the
second Article infra, New Perspectives on Brady and Other
Disclosure Obligations: A Nationwide Report on Best Practices and
What Really Works.5
The scholarly Articles generated from the
presentations and group reports provide ideas for future avenues of
inquiry.
II.
SUMMARY OF SPEECHES AND ARTICLES
Charles Hynes set the stage for this provocative Symposium,
telling participants that he hoped that they would learn, not only
from his office’s policies but from other innovative strategies, how
to reduce unlawful and unethical nondisclosures. He ended his
remarks with “make no mistake about it, disclosure is not only an
ethical and legal obligation, it is a moral imperative.”6
Dr. Gordy Schiff then provided a fascinating overview of
changes implemented in the medical system to improve quality
assurance in diagnosing errors in hospitals.7 He offered a useful
perspective as to how these changes might be applicable to the legal
system. Drawing upon extensive studies, including the influential
medical report “ To Err is Human,” he explained how the medical
system moved away from a system of individual blame for errors to
systemic examination of their causes in “protected spaces” where
doctors and nurses were encouraged without fear of recrimination to
learn from errors. He explored “parallel developments in health
5
6
31 CARDOZO L. REV. _____ (2010).
Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
31 CARDOZO L. REV. _____ (2010).
7 Id. at _____.
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care that are . . . relevant to creating a more reliable system of
evidence disclosure.” Dr. Schiff suggested that at least some of the
changes in the medical field—notably a checklist system, “safety
nets to prevent irreparable harm from inevitable human error,” a
streamlined and standardized electronic infrastructure—was
transferrable to better operation of the disclosure process in the
criminal justice system. He noted that this improved process for
organization and access to information would benefit prosecutors as
least as much as defense attorneys.
Barry Scheck, co-founder of the Innocence Project, explored
lessons from both the criminal cases and the post-exoneration civil
rights cases that involve the prosecution’s failure to disclose
evidence.8 Scheck explained that it is essential to focus upon
internal mechanisms within prosecutors’ offices to improve systems
for information control and disclosure particularly because
mechanisms outside the prosecutor’s office such as civil liability,
judicial and other external regulatory systems were inadequate to
remedy the problem. Scheck devised a “thought experiment” that
carefully and systematically identified the top three causes of failure
to disclose information. He identified such causes as (1) information
not transmitted from the police to the prosecutor; (2) information
that the prosecutor fails to identify as Brady material; or (3)
information that the prosecutor fails to disclose because of fear
(generally, fear of losing). Drawing upon Dr. Schiff’s presentation
and the reports of the Working Groups, infra, Scheck amplified his
remarks at the Symposium with the Article in this volume. He
makes suggestions for changes in training and supervision,
information gathering, and ways to create a “culture of safety,”
which includes checklists and judicial supervision of disclosure
compliance, clarity in the disclosure obligation, and random audits.9
Additionally, he describes the effective operation of a Professional
and Conviction Integrity Unit in prosecutor’s offices.
Dr. Maria Hartwig, cognitive psychologist at the John Jay
College of Criminal Justice whose work focuses on the psychology of
deception and detection, described various cognitive biases that
affect us all—including confirmation bias—the tendency that people
are prone to see information in the light that confirms their
previously held views.10 She described how easy it is to trivialize
8 Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really
Works?, 31 CARDOZO L. REV. _____ (2010); Barry Scheck, Professional and Conviction
Integrity Programs: Why We Need Them, Why They Work, and Models for Creating Them, 31
CARDOZO L. REV. _____ (2010).
9 Scheck, supra note 8, at _____.
10 Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
supra note 6, at _____.
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what is later seen as exculpatory evidence, not because of malicious
intent, but because of human errors. Describing her work in the area
of formation of social judgments, she explained that studies
demonstrate that human beings are poor lie detectors and that that
they often compound their errors by mistakenly believing in their
prowess to identify lies. This can cause them to overlook obvious
implications of evidence and produce adverse results in criminal
cases. Criticizing the “Bible” of investigation—the Reid Manual11 —
Dr. Hartwig pointed out the dangers in these investigative techniques
that merely reinforce cultural myths about lie detection. Her
recommendations to avoid the effects of cognitive biases include
clearer outcome feedback—analyzing the cases where mistakes were
made—as well as developing “more powerful and scientifically
supported techniques” to avoid false confession and incorrect
credibility judgments.
Dr. Larry Richard, Vice President of Leadership & Organization
Development Practice with Hildebrandt, has studied lawyers—
notably prosecutors—for more than twenty years and concluded that
lawyers have habitual ways of “thinking, feeling, and behaving,” that
takes them off the bell curve for the population. 12 Documenting
various personality testing tools, he presented behavioral data that
shows lawyers to be highly skeptical, autonomous, time driven with a
need for closure, low on the sociability scale, high in abstract
reasoning and significantly low in resilience. This last characteristic
is one of a person who is likely to get defensive and ward off
criticism. Referring to Dr. Hartwig’s presentation about cognitive
bias, Dr. Richard noted that a person with low resilience was more
likely to suffer from cognitive bias and not to recognize the need for
repair or the need to improve. He quipped, to the mirth of the
many attorneys in attendance, that “even if you could convince a
lawyer that a change were necessary they wouldn’t do it.” 13 These
and other characteristics can cause obstacles to revising policies and
procedures that might relieve systemic problems.
Lou Reiter, an expert in police practices, traced the
development of police practices regarding Brady and other disclosure
obligations. He explained the three trends that have affected police
practice about Brady beginning in the 1990s that have resulted in
greater attention to, and perhaps compliance with, the disclosure
requirements. First, was the negative effect that failure to disclose
11 F. INBAU & J. REID, CRIMINAL INTERROGATION AND CONFESSIONS (Williams & Wilkins
2d ed. 1967).
12 Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
supra note 6, at _____.
13 Symposium, supra note 8.
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has upon the credibility of police officers in subsequent cases.
Second, was closer attention to problems in the investigative process
and to police training to avoid commonplace violations of evidence
gathering procedures. The third factor is that civil litigation,
notably civil rights cases brought by the exonerated, have had an
impact on compliance with disclosure obligations. Despite these
inroads, Mr. Reiter pointed out that the police had yet to look at
systemic issues as to causes for wrongful convictions caused at least
in part by police practices of failing to disclose necessary evidence.
Hon. John Chisolm provided an overview of his office’s
effective and innovative strategies not only in disclosure, but also in
various community based initiatives. 14
Similar to the law’s
alternatives to incarceration described by Hon. Charles Hynes in his
introduction, Milwaukee has extensive screening and diversion
programs to insure that individuals are not placed in the criminal
justice system unless there are no effective alternatives. As Chisolm
notes, many offices are engaged in a fundamental reexamination of
the prosecutor’s role moving from process oriented systems to
outcome-based ones. Part and parcel of the Milwaukee program is
early access to information by the defense to effectuate informed
decision making. Chisolm’s office changed to an open file policy
where, with noted exceptions to protect witnesses, virtually all
information from the prosecution file is disclosed to the defense.
Contrary to fears and expectations of individual prosecutors in his
office, the policy has enhanced effective guilty pleas and improved
relationships among counsel.
Terri Moore, the Dallas County prosecutor, described the
transformation of that office from one with a challenging record of
wrongful convictions to the first office in the country to establish a
Conviction Integrity Unit. 15 That unit was established to examine
cases where defendants had requested, and were denied access to DNA
evidence. As a consequence, the Dallas County office implemented a
range of new practices in hiring, training and supervision. Moore
provided one the Symposium’s most noted suggested practices for
reform: The office sends case law on disclosure obligations to
potential hires and tells them to come prepared to discuss the
disclosure obligation and their role. Reinforcing the obligation early
on in the process is the beginning of good practices. Moore also
described the office policy of requiring the preservation of all trial
notes.
14 Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
supra note 6, at _____.
15 Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
supra note 6, at _____.
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Professor Rachel Barkow reflected upon the experience of
federal prosecutors in the 1990s recognizing that cultural changes
were essential within corporate entities to deter crime. 16 The
prosecution required entity-based corporate compliance programs
that include implementation of training, supervision, monitoring,
and transparency policies. Carefully evaluating the comparison
between compliance models for corporations and prosecutors’
offices, Barkow provided an important framework that uses these
compliance programs to argue for similar compliance programs
within prosecutors’ offices to deter Brady violations. As she
cogently argues in her Article included in this volume, just as
prosecutors have required the implementation of entity-based
compliance programs for other organizations, prosecutors should
implement this model for their own offices.17
Barry Schwartz ended the day’s presentation by offering
important insights about implementing incentives and accountability
mechanisms for prosecutors.18 His important caveat was that
incentives must be based upon meeting certain explicit criteria and
many incentives are actually based upon a set of implicit criteria.
Thus, creating incentive structures for compliance with disclosure
obligations must take into account the implicit criteria, the know
cognitive biases and “naïve realism”—that is, the attitude we all have
that we are correct when we disagree with someone and we believe
that the other person “just won’t see the truth.” 19 Schwartz’s
cautionary tales ended with a reflection on the Symposium’s theme
of “getting beyond individual blame.” Schwartz thought that in the
legal system, individual accountability was essential to effective
functioning.
III.
REPORTS OF THE W ORKING GROUPS
The Reports from each of the working groups20 provide a
thorough exploration of a wide range of issues identifying key areas
with suggestions for improvement. These serve as a model for
jurisdictions to consider specific policies and programs and proposed
changes in court rules or legislation.
16
17
Id. at _____.
Rachel E. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31 CARDOZO L.
REV. _____ (2010).
18 Voices from the Field: A Cross-Professional Approach to Managing Critical Information,
supra note 6, at _____.
19 Id. at _____.
20 New Perspectives on Brady and Other Disclosure Obligations: A Nationwide Report on
Best Practices and What Really Works, 31 CARDOZO L. REV. _____ (2010).
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The first group was charged with considering the appropriate
scope and timing of and exceptions to disclosure. The remaining
five groups did not discuss what should be disclosed. Rather, each
subsequent group had its own mission and was asked to presume that
what should be disclosed was to be taken as given that the obligation
would be defined.
A.
Prosecutorial Disclosure Obligations and Practices
This group acknowledged that the boundaries of the disclosure
obligation are uncertain and contested in great measure because of
the materiality requirement and issues relating to the timing of
disclosure.21 They agreed on the necessity for greater clarity as to
disclosure obligations and the need for internal policies to govern the
obligations. While the group disagreed as to whether disclosure
should be greater than that required by law as well as other issues,
they reached broad consensus on many principles, notably on the
scope and timing of disclosure. The group concluded that “as a
general principle but subject to exceptions, prosecutors should
disclose all evidence or information that they reasonably believe will
be helpful to the defense or that could lead to admissible evidence.”
As to timing, they agreed that “prosecutors should disclose evidence
and information as soon as practicable.”22 The report describes the
various issues and contention across a wide range of topics and
concludes that substantial ground was reached in defining and
narrowing issues of agreement and disagreements worthy of future
discussion.
B.
Working Group on the Disclosure Process
This group considered “how to insure that, whatever the scope
of the disclosure obligation or commitment, it is effectuated.”23 (112)
The Group focused primarily on how to facilitate communication
between police and prosecutors, as this appears to be the area with
greatest difficulty of insuring compliance.
First, the group
emphasized the need for formal policies and procedures. It reached
consensus that case information checklists were essential to “ensure
full and timely transfer of all relevant information from police to
21
22
23
Id. at _____.
Id. at _____.
Id. at _____.
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prosecutors” and explored experiences from jurisdictions that utilize
them. 24 It suggested technology-focused information checklists and
discussed how a checklist-based system could be fostered in all
jurisdictions. It concluded that a group of experts should develop a
set of model checklists that could be tailored by local offices to meet
their particular circumstances. This group noted that a significant
issue is that important information is often not recorded and
suggested that “procedures and tools” (including checklists) be
implemented. The group noted that for checklists to be effective
there needs to be audits that “examine the extent to which police
have met their information-sharing obligations.”25 (118) Other
suggestions include the mandatory participation of police in pretrial
discovery conferences to insure accountability to the courts as well
as to increase cooperation and compliance with prosecutors.
The working group noted particular challenges in four areas: (1)
when there are parallel investigations; (2) in misdemeanors; (3) the
extent of required prosecutorial note taking; and (4) whether there
should be electronic recording of interviews. The report provides
insightful discussion of each of these issues. Finally, this group
considered the thorny issues of timing of certain disclosure to the
defense.
This Working group suggested that an appropriate
resolution is that various jurisdictions consider “open and early
discovery in a small category of cases, and then evaluate those cases
to determine if such disclosure creates any problems.”26
C.
Prosecutorial Training and Supervision Group
This group considered a wide range of issues, beginning with the
notion that “prosecutors’ offices must accept responsibility for
setting internal disclosure standards and hiring, training, supervising
and monitoring lawyers to insure the standards are met.” To the
extent there are disclosure issues, solutions should focus on “raising
awareness and implementing safeguards, not simply on trying to
weed out a handful of rogues or bad apples.”27 First identifying
problems, the group acknowledged the recognized dangers of tunnel
vision, the consequences of a chronically overtaxed system, the
failure to memorialize information, and unclear standards and rules.
The potential solutions include reframing the issue as “[telling a] full
story” rather than as a “windfall for defendants and a blame game for
24
25
26
27
Id. at _____.
Id. at _____.
Id. at _____.
Id. at _____.
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prosecutors.”28 The group proposed hiring practices akin to the
Dallas County practice29 so that disclosure obligations are identified
as a key issue in the hiring process. As for training, the group
emphasized the need for formal and informal training on an ongoing
basis, utilizing training videos and simulations. Significant attention
was devoted to the need for “feedback loops” in the supervision
process so that prosecutors can learn from the successes and failures
of others. “Feedback should be standardized, periodic and routine,”
and should be not only internal but from colleagues, subordinates,
public defenders, judges,and police, akin to an “eBay[] posttransaction email[], asking buyers to rate their sellers.”30 (132)
D.
Systems and Culture
This group was charged with addressing “aspects of ‘systems and
culture’ in a prosecutor’s office that could best contribute to high
compliance rates” with disclosure obligations.31 First the group
noted that prosecutors could not rely on rules and systems alone to
influence culture. Rather, culture and systems “need to reinforce”
each other to create a cultural norm of commitment to the
underlying values that support disclosure. This begins with leadership
that effectively conveys its commitment in part, by insuring that
“success” is not confined to winning. To do so, the group suggested
that internal stories in training and office lore include cases of
“litigation fairness” along with trial victories. It pointed out that a
reversal on appeal cannot form the only failure of disclosure in
discovery. Instead, the office should examine “near misses,” (a
concept from the medical field) to study failures to disclose even
when there is an appellate finding of no prejudice.
The group considered the effects of election versus
appointment on the creation of office culture.32 It considered the
dearth of material and need for study as to how attorneys form
professional identities. Finally, it recognized that culture is embodied
in incentive systems, acknowledging that such systems are more
meaningful to outcomes than “verbal affirmations about the
importance of fair play.” 33 It considered a range of incentives,
offering quite different accounts of what incentives were currently at
28
29
30
Id. at _____.
See supra 109.
New Perspectives on Brady and Other Disclosure Obligations: A Nationwide Report on
Best Practices and What Really Works, supra note 20, at _____.
31 Id. at _____.
32 Id. at _____.
33 Id. at _____.
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play. Drawing from the experience of large private firms that
designate an attorney as Legal Counsel to the firm, it suggested that
a highly regarded lawyer could be appointed as a Disclosure Expert to
oversee, advise, gather and disseminate information about the
office’s disclosure issues. The group had a wide ranging discussion of
the pros and cons of random internal and external audits and used as
parallel models in the health care system.
E.
The Internal Regulation of Discovery Practices Group
This group focused upon the development of written guidelines,
auditing and oversight. 34 Similar to conclusions of other groups, it
called for the promulgation of clear written guidelines and procedures
by which they should be effectuated. They discussed “hard versus
soft” guidelines (specific directives vs. goal directives), weighing the
pros and cons with a majority concluding that the optimal approach
is soft rules with commentary. The group detailed the types and use
of checklists in the discovery process as an effective mode of
internal regulation during which the metaphor from the medical field
of “putting a nurse in the room” gained traction. This refers to the
separation of task performance from responsibility for confirming
task completion. 35
Finally, realistic models for best auditing
practices were considered. The group recognized the significance of
data gathering and recommended the gathering of data to “improve
development of and compliance with guidelines.”36 The thorough
report describes the groups’ range of views to guide further discussion
of best practices.
F.
The External Regulation of Discovery Practice Group
This group considered “whether, how, and to what extent,
courts, disciplinary authorities and other external bodies should
regulate disclosure obligations.”37 It recommended greater judicial
involvement, including mandatory pretrial conferences to enforce
compliance with disclosure obligations and requiring prosecutors to
provide affirmation and certification of compliance.
It
recommended a range of checklist requirements, including disclosure
to the court of items disclosed and a privilege log of items withheld.
34
35
36
37
Id. at _____.
Id. at _____.
Id. at _____.
Id. at _____.
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It recommended mandatory judicial reporting of prosecutors to
disciplinary committees and called for vertical case assignments of
judges.
IV.
ARTICLES
In addition to the articles by Rachel Barkow38 and Barry
Scheck, 39 this Volume includes articles by other scholars that deepen
the understanding of developing effective approaches to improve the
exercise of prosecutorial discretion and systems for training,
supervision and accountability.
In Talking About Prosecutors, Alafair Burke develops a premise
of the Symposium, which was to move beyond a culture of “blame”
to one of examination of systems for improvement. 40 She surveys
the literature on prosecutorial decision making and notes that it is
dominated by a language of fault-based rhetoric as the growing
literature about innocence and wrongful convictions assumes that
“prosecutorial misconduct” is deeply imbedded in prosecutorial
culture. Rather, she argues that most prosecutorial failures to
produce evidence are the product of mistake or inadvertence, often
the consequence of the unclear Brady policy itself, and that it
behooves lawyers and academics to move beyond the language of
“fault-based rhetoric” to discussions that will more likely persuade
prosecutors to implement reforms.41
Bruce Green challenges a fundamental premise of the
Symposium: that its lessons can be implemented.42 Green questions
whether prosecutors’ offices can learn from their mistakes.
Beginning with the DOJ’s acknowledgement in the Ted Stevens case
that is made mistakes and its promise to learn from those mistakes,
Green identifies a host of reasons why this may not occur.
Amplifying the Symposium’s themes and presentations, Green
suggests that the starting point for any office is to acknowledge and
attempt to understand why the errors occurred. He notes that state
and federal prosecutors might profess doubt about the value of
studying such errors because of a perception of a lack of systemic
problem and the adequacy of the current disclosure and
accountability systems. Debunking these notions, Green identifies
38
39
40
41
42
See generally Barkow, supra note 17.
See generally Scheck, supra note 8.
Alafair S. Burke, Talking About Prosecutors, 31 CARDOZO L. REV. _____ (2010).
Id. at _____.
Bruce A. Green, Beyond Training Prosecutors About Their Disclosure Obligations: Can
Prosecutors’ Offices Learn from Their Lawyers’ Mistakes?, 31 CARDOZO L. REV. _____ (2010).
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the challenges for prosecutors’ offices in making improvements and
suggests that, at the very least, prosecutors should develop processes
to learn from their mistakes.
Lawton Cummings turns her attention solely to an
understanding of intentional misconduct and undertakes an analysis
of the social psychology of prosecutors who engage in willful
misconduct. 43 Cummings draws upon moral disengagement theory—
the mechanisms that operate to distance an individual from their
individual moral code and self sanctions to permit them to perform
“questionable acts.” What allows a formerly ethical prosecutor to
engage in unethical behavior? She explains moral disengagement
theory and discusses various mechanisms and factors that permit
such behavior. Lawton argues in favor of systemic reforms to
ameliorate the potential effects of moral disengagement, including
community based solutions to public safety issues and “evaluating
outcomes through measurements beyond conviction rates.”44
Addressing the need for accountability, Cummings adopts the
suggestion of Prosecution Review Boards under the aegis of the state
bar to conduct random reviews of prosecutorial decisions.
Daniel Medwed, noting that a discussion about prosecutorial
disclosure policies and practice is incomplete without a parallel
discussion of the exercise of discretion in the charging decision,
suggests that some of the proposals for effective and external
internal regulation for disclosure of information should be
implemented for the charging decision. 45 Medwed discusses the
effect of various cognitive biases in charging decisions and suggests a
range of structural and policy changes to charging decisions to
safeguard the innocent.
These include raising the evidentiary
threshold to file a case, include defense evidence in the decision
making and adding an “objective prong” to the subjective test that
exists in most jurisdictions to file a charge. Moreover, for weak
cases, Medwed advocates a secondary review structure within the
prosecutor’s office to vet these borderline cases.
V.
FUTURE W ORK
The goal of the Symposium and this symposium issue is to
develop best practices to optimize effective training, supervision and
43 Lawton P. Cummings, Can an Ethical Person Be an Ethical Prosecutor? A Social
Cognitive Approach to Systemic Reform, 31 CARDOZO L. REV. _____ (2010).
44 Id. at _____.
45 Daniel S. Medwed, Emotionally Charged: The Prosecutorial Charging Decision and the
Innocence Revolution, 31 CARDOZO L. REV. _____ (2010).
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control mechanisms for managing information within prosecutors’
offices. It is our hope that the Symposium and this publication will
be used to foster further discussion, meetings, conferences, and
proposals to develop policies and practices that improve the
criminal justice system.
ABA Model Rule 3.8
Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the
procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the
right to a preliminary hearing;
(d) 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;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past
or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or
prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the
prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of the
accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees
or other persons assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this
Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a convicted defendant did not commit an offense of which the defendant was convicted, the
prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine
whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the
prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor
shall seek to remedy the conviction.
Model Rule 3.8 Special Responsibilities Of A Prosecutor – Comment
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. 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. The extent of mandated remedial action is a
matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA
Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged
and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent
representation of the sovereignty may require a prosecutor to undertake some procedural and remedial
measures as a matter of obligation. Applicable law may require other measures by the prosecutor and
knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute
a violation of Rule 8.4.
[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable
opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of
preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph
(c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does
it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel
and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective
order from the tribunal if disclosure of information to the defense could result in substantial harm to an
individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal
proceedings to those situations in which there is a genuine need to intrude into the client-lawyer
relationship.
[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial
likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a
prosecutor's extrajudicial statement can create the additional problem of increasing public
condemnation of the accused. Although the announcement of an indictment, for example, will
necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments
which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public
opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a
prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities
regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Paragraph (f)
reminds the prosecutor of the importance of these obligations in connection with the unique dangers of
improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to
exercise reasonable care to prevent persons assisting or associated with the prosecutor from making
improper extrajudicial statements, even when such persons are not under the direct supervision of the
prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the
appropriate cautions to law- enforcement personnel and other relevant individuals.
[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not
commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as
the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in
the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and
undertake further investigation to determine whether the defendant is in fact innocent or make
reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and
to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant.
Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made
through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be
accompanied by a request to a court for the appointment of counsel to assist the defendant in taking
such legal measures as may be appropriate.
[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the
defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to
remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant,
requesting that the court appoint counsel for an unrepresented indigent defendant and, where
appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit
the offense of which the defendant was convicted.
[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such
nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have
been erroneous, does not constitute a violation of this Rule.
100B
No resolution presented herein represents the policy of the association until it shall have
been approved by the House of Delegates. Informational reports, comments and supporting
data are not approved by the House in its voting and represent only the views of the Section
or Committee submitting them.
AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
1
2
3
RESOLVED, That the American Bar Association urges trial and appellate courts when
reviewing the conduct of prosecutors to differentiate between “error” and “prosecutorial
misconduct.”
100B
REPORT
The term “prosecutorial misconduct” has become a term of art in criminal law that is
sometimes used to describe conduct by the government that violates a defendant’s rights
whether or not that conduct was or should have been known by the prosecutor to be
improper and whether or not the prosecutor intended to violate the Constitution or any
other legal or ethical requirement. When a prosecutor knowingly or intentionally violates
a constitutional or legal requirement, the term “prosecutorial misconduct” may aptly
describe the prosecutor’s actions. When a prosecutor makes an inadvertent or innocent
mistake, the effect on a defendant may be the same as if misconduct occurred and must
be accompanied by a fully appropriate remedy, but the term “error” may more accurately
describe the prosecutor’s actions. Recommendation 100B, with the full support of the
National District Attorneys’ Association, recognizes that there can be a difference
between misconduct and error, and it urges courts, when reviewing claims that
prosecutors have violated a constitutional or legal standard, to choose the term that more
accurately describes prosecutorial conduct while fully protecting a defendant’s rights.
Even conscientious lawyers sometimes make mistakes. These mistakes can be small –
e.g., misspelling the name of a case or citing in a brief the wrong page of an opinion – or
large – e.g., turning over privileged documents in response to a discovery request. When
a lawyer commits an error, the lawyer or the lawyer’s client may suffer an adverse
consequence depending on the nature of the error and its effect on an adversary or court.
The American Bar Association and the National District Attorney’s Association have
consistently made efforts to improve lawyer performance by promoting continuing legal
education, publishing books and articles to assist lawyers in performing at the highest
levels, and offering opinions on issues of professional responsibility that educate
lawyers as to their responsibilities and provide guidance to avoid professional mistakes.
The reality that lawyers are not perfect does not mean that lawyers should not be held
accountable for their mistakes. Holding lawyers accountable is of vital importance to
public confidence in the bar. It is important, however, that lawyers be held appropriately
accountable.
While lawyers cannot fairly complain when their errors are discovered, identified, and
remedied, most lawyers perceive an important distinction between this and having their
actions described as “misconduct.”
The resolution recognizes that the term “prosecutorial misconduct” may fairly describe
some prosecutorial actions conduct and that the term “error” may more be a more
accurate description of other conduct. The resolution seeks to assure that a defendant’s
rights are fully protected regardless of what term is used to describe a prosecutor’s
actions, but it asks courts to consider using the term “error” when it more accurately
describes conduct than the term “misconduct.”
1
100B
Professional prosecutor offices today take pride in the professional reputation of their
lawyers. The leadership in these offices seek to eliminate mistakes and errors that
infringe a defendant’s rights and require unnecessary additional proceedings that burden
all participants in the system. Yet, even the most diligent office and the most careful
lawyer sometimes make mistakes. Those who have considerable experience in criminal
justice understand that the term “prosecutorial misconduct” can be used by a court to
describe governmental conduct of which a prosecutor might have been unaware as well
as misconduct by a prosecutor. But many people with less criminal justice experience
might wrongly conclude that a judicial finding of “prosecutorial misconduct” implies
that a prosecutor broke a rule or breached a trust with a level of culpability that warrants
special condemnation.
The resolution asks judges to protect a defendant’s rights fully and to provide whatever
remedies the law requires when a defendant’s rights have been violated, but to consider
whether “error” more accurately describes a prosecutor’s conduct than “misconduct.”
There is good reason for prosecutors, their offices and the public to know whether or not
a court has merely found error and provided a remedy or whether a court has found
culpable conduct associated with that error.
For example, suppose a prosecutor makes a closing argument and tells the jury that
Witness X testified to a particular fact, opposing counsel objects that the witness did not
so testify, the trial judge overrules the objection; and on appeal, with the benefit of a
complete transcript, a reviewing court finds that the objection was correct and that
Witness X did not actually testify as the prosecutor claimed during the closing. This
could happen in any case, and the probability of it occurring might well increase along
with the length of a case and the absence of daily transcript. In such a case, the
reviewing court surely would find error and determine whether the error was prejudicial
or harmless. The reviewing court could call the conduct “error” or “misconduct”
without affecting the remedy to be provided, but the choice between the terms should
reflect which more accurately describes the conduct
Contrast this example with one in which a criminal accused moves in limine just prior to
opening statements to exclude certain evidence as unduly prejudicial, the trial judge
grants the motion and instructs opposing counsel not to mention the evidence during the
trial, and the prosecutor acknowledges hearing and understanding the judge’s
admonition and nonetheless mentions the excluded evidence in an opening statement,
the moving party objects and requests a mistrial, and the judge grants the motion. The
judge might describe what occurred as “prosecutorial misconduct” and might well add
that it appears to have been intentional.
These examples present fairly clear scenarios in which it often will be easy to
distinguish between inadvertent error and culpable conduct. In many other cases, the
distinction may not so easily be drawn. For example, did a prosecutor make a good faith
mistake in failing to produce a document in discovery, or did the prosecutor
intentionally suppress a document that clearly should have been produced? In many
2
100B
instances, a reviewing court might have no reliable information concerning the
prosecutor’s state of mind. As long as the court fully protects the rights of a defendant,
a decision to use the term “error” rather than “misconduct” might avoid an inaccurate
and unnecessarily pejorative characterization of ambiguous action.
Respectfully Submitted,
Charles Joseph Hynes, Chair
Criminal Justice Section
August 2010
3
100B
GENERAL INFORMATION FORM
Submitting Entity: American Bar Association Criminal Justice Section
Submitted By: Joseph Charles Hynes, Chair
1.
Summary of Recommendation(s).
This Recommendation recognizes that the term “prosecutorial misconduct” has
become a term of art in criminal law that is sometimes used to describe conduct
by the government that violates a defendant’s rights whether or not that conduct
was or should have been known by the prosecutor to be improper and whether or
not the prosecutor intended to violate the Constitution or any other legal or ethical
requirement.
2.
Approval by Submitting Entity.
The recommendation was approved by the Criminal Justice Section Council on
April 10, 2010.
3.
Has this or a similar recommendation been submitted to the ABA House of
Delegates or Board of Governors previously?
NO.
4.
What existing Association policies are relevant to this recommendation and how
would they be affected by its adoption?
None that we are aware of at this time.
5.
What urgency exists which requires action at this meeting of the House?
Even conscientious lawyers sometimes make mistakes. These mistakes can be
small – e.g., misspelling the name of a case or citing in a brief the wrong page of
an opinion – or large – e.g., turning over privileged documents in response to a
discovery request. When a lawyer commits an error, the lawyer or the lawyer’s
client may suffer an adverse consequence depending on the nature of the error and
its effect on an adversary or court. The reality that lawyers are not perfect does
not mean that lawyers should not be held accountable for their mistakes. Holding
lawyers accountable is of vital importance to public confidence in the bar. It is
important, however, that lawyers be held appropriately accountable.
6.
Status of Legislation. (If applicable.)
Not applicable
7.
Cost to the Association. (Both direct and indirect costs.)
None
8.
Disclosure of Interest. (If applicable.)
No known conflict of interest.
4
100B
9.
Referrals. (List entities to which the recommendation has been referred, the date
of referral and the response of each entity if known.)
Concurrently with the submission of this report to the ABA Policy Administration
Office for calendaring on the August 2010 House of Delegates agenda it is being
circulated to the following:
Standing Committee on Legal Aid and Indigent Defendants
Judicial Division
Litigation Section
Individual Rights and Responsibilities Section
Coalition for Justice
Council on Ethnic and Racial Justice
Young Lawyers Division
Government and Public Sector Lawyers Division
Standing Committee on Ethics and Responsibility
Standing Committee on Lawyers’ Professional Responsibility
Standing Committee on Professional Discipline
State and Local Government Law
Administrative Law
10.
Contact Person. (Prior to the meeting. Please include name, address, telephone
number and email address.)
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street NW
Washington DC 20052-0026;
PH: 202/994-7089; 202 /489-7464 (cell)
E-mail: ssaltz@law.gwu.edu
11.
Contact Person. (Who will present the report to the House)
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street NW
Washington DC 20052-0026;
PH: 202/994-7089; 202 /489-7464 (cell)
E-mail: ssaltz@law.gwu.edu
William Shepherd, Section Delegate
Statewide Prosecution
1515 N Flagler Drive, Suite 900
West Palm Beach FL 33401-3432
PH: 561/837-5025, ext. 226; 561/723-9669 (cell)
E-mail: William.shepherd@myfloridalegal.com
5
100B
EXECUTIVE SUMMARY
A.
Summary of Recommendation.
This Recommendation recognizes that the term “prosecutorial misconduct” has become a
term of art in criminal law that is sometimes used to describe conduct by the government
that violates a defendant’s rights whether or not that conduct was or should have been
known by the prosecutor to be improper and whether or not the prosecutor intended to
violate the Constitution or any other legal or ethical requirement.
B.
Issue Recommendation Addresses.
It addresses and urges trial and appellate courts reviewing the conduct of prosecutors,
while assuring that a defendant’s rights are fully protected, to use the term “error” where
it more accurately characterizes that conduct than the term “prosecutorial misconduct.”
C.
How Proposed Policy Will Address the Issue.
The recommendation calls upon judges to protect a defendant’s rights fully and to
provide whatever remedies the law requires when a defendant’s rights have been
violated, but to consider whether “error” more accurately describes a prosecutor’s
conduct than “misconduct.” There is good reason for prosecutors, their offices and the
public to know whether or not a court has merely found error and provided a remedy or
whether a court has found culpable conduct associated with that error.
D.
Minority Views or Opposition.
None.
6
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 09-454
Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense
July 8, 2009
Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor 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, [to] disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate
from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court
orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense
to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making
such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further
obligated to conduct searches or investigations for favorable evidence and information of which they are
unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and
information that might lead to a more lenient sentence unless the evidence or information is privileged.
Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all
lawyers in the office comply with their disclosure obligation.
There are various sources of prosecutors’ obligations to disclose evidence and other information to
defendants in a criminal prosecution. 1 Prosecutors are governed by federal constitutional provisions as
interpreted by the U.S. Supreme Court and by other courts of competent jurisdiction. Prosecutors also have
discovery obligations established by statute, procedure rules, court rules or court orders, and are subject to
discipline for violating these obligations.
Prosecutors have a separate disclosure obligation under Rule 3.8(d) of the Model Rules of
Professional Conduct, which provides: “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 may overlap with a
prosecutor’s other legal obligations.
Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in
Brady v. Maryland, 2 which held that criminal defendants have a due process right to receive favorable
information from the prosecution. 3 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. Yet despite the
importance of prosecutors fully understanding the extent of the separate obligations imposed by Rule
3.8(d), few judicial opinions, or state or local ethics opinions, provide guidance in interpreting the various
state analogs to the rule. 4 Moreover, although courts in criminal litigation frequently discuss the scope of
prosecutors’ legal obligations, they rarely address the scope of the ethics rule. 5 Finally, although courts
1
This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through August
2009. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are
controlling.
2
373 U.S. 83 (1963). See State v. York, 632 P.2d 1261, 1267 (Or. 1981) (Tanzer, J., concurring) (observing parenthetically that the
predecessor to Rule 3.8(d), DR 7-103(b), “merely codifies” Brady).
3
Brady, 373 U.S. at 87 (“the suppression by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”); see also
Kyles v. Whitley, 514 U.S. 419, 432 (1995) (“The prosecution's affirmative duty to disclose evidence favorable to a defendant can
trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this
Court's decision in Brady v. Maryland.”)
4
See Arizona State Bar, Comm. on Rules of Prof’l Conduct, Op. 2001-03 (2001); Arizona State Bar, Comm. on Rules of Prof’l
Conduct, Op. 94-07 (1994); State Bar of Wisconsin, Comm. on Prof’l Ethics, Op. E-86-7 (1986).
5
See, e.g., Mastracchio v. Vose, 2000 WL 303307 *13 (D.R.I. 2000), aff'd, 274 F.3d 590 (1st Cir.2001) (prosecution's failure to
disclose nonmaterial information about witness did not violate defendant's Fourteenth Amendment rights, but came "exceedingly close
09-454 Formal Opinion
2
sometimes sanction prosecutors for violating disclosure obligations, 6 disciplinary authorities rarely proceed
against prosecutors in cases that raise interpretive questions under Rule 3.8(d), and therefore disciplinary
case law also provides little assistance.
The Committee undertakes its exploration by examining the following hypothetical.
A grand jury has charged a defendant in a multi-count indictment based on allegations
that the defendant assaulted a woman and stole her purse. The victim and one bystander,
both of whom were previously unacquainted with the defendant, identified him in a photo
array and then picked him out of a line-up. Before deciding to bring charges, the
prosecutor learned from the police that two other eyewitnesses viewed the same line-up
but stated that they did not see the perpetrator, and that a confidential informant attributed
the assault to someone else. The prosecutor interviewed the other two eyewitnesses and
concluded that they did not get a good enough look at the perpetrator to testify reliably.
In addition, he interviewed the confidential informant and concluded that he is not
credible.
Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify
the defendant and that an informant implicated someone other than the defendant? If so, when must the
prosecutor disclose this information? Would the defendant’s consent to the prosecutor’s noncompliance
with the ethical duty eliminate the prosecutor’s disclosure obligation?
The Scope of the Pretrial Disclosure Obligation
A threshold question is whether the disclosure obligation under Rule 3.8(d) is more extensive than
the constitutional obligation of disclosure. A prosecutor’s constitutional obligation extends only to
favorable information that is “material,” i.e., evidence and information likely to lead to an acquittal. 7 In the
hypothetical, information known to the prosecutor would be favorable to the defense but is not necessarily
material under the constitutional case law. 8 The following review of the rule’s background and history
indicates that Rule 3.8(d) does not implicitly include the materiality limitation recognized in the
constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can
decide on its utility.
Courts recognize that lawyers who serve as public prosecutors have special obligations as
representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern
to violating [Rule 3.8]").
6
See, e.g., In re Jordan, 913 So. 2d 775, 782 (La. 2005) (prosecutor's failure to disclose witness statement that negated ability to
positively identify defendant in lineup violated state Rule 3.8(d)); N.C. State Bar v. Michael B. Nifong, No. 06 DHC 35, Amended
Findings of Fact, Conclusions of Law, and Order of Discipline (Disciplinary Hearing Comm’n of N.C. July 24, 2007) (prosecutor
withheld critical DNA test results from defense); Office of Disciplinary Counsel v. Wrenn, 790 N.E.2d 1195, 1198 (Ohio 2003)
(prosecutor failed to disclose at pretrial hearing results of DNA tests in child sexual abuse case that were favorable to defendant and
fact that that victim had changed his story); In re Grant, 541 S.E.2d 540, 540 (S.C. 2001) (prosecutor failed to fully disclose
exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution). Cf. Rule
3.8, cmt. [9] (“A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the
obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this
Rule.”)
7
See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Kyles, 514 U.S. at 432-35, United States v. Bagley, 473 U.S. 667, 674-75
(1985).
8
“[Petitioner] must convince us that ‘there is a reasonable probability’ that the result of the trial would have been different if the
suppressed documents had been disclosed to the defense.. . . [T]he materiality inquiry is not just a matter of determining whether, after
discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's
conclusions. Rather, the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.’” Strickler, 527 U.S. at 290 (citations omitted); see also United States v.
Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (“The result of the progression from Brady to Agurs and Bagley is that the nature of the
prosecutor’s constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to
any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a
prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if
disclosure had been made.”)
09-454 Formal Opinion
3
impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.” 9 Similarly, Comment [1] to
Model Rule 3.8 states that: “A prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. 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.”
In 1908, more than a half-century prior to the Supreme Court’s decision in Brady v. Maryland, 10
the ABA Canons of Professional Ethics recognized that the prosecutor’s duty to see that justice is done
included an obligation not to suppress facts capable of establishing the innocence of the accused. 11 This
obligation was carried over into the ABA Model Code of Professional Responsibility, adopted in 1969, and
expanded. DR 7-103(B) provided: “A public prosecutor . . . shall make timely disclosure to counsel for the
defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor . .
. . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the
punishment.” The ABA adopted the rule against the background of the Supreme Court’s 1963 decision in
Brady v. Maryland, but most understood that the rule did not simply codify existing constitutional law but
imposed a more demanding disclosure obligation. 12
Over the course of more than 45 years following Brady, the Supreme Court and lower courts
issued many decisions regarding the scope of prosecutors’ disclosure obligations under the Due Process
Clause. The decisions establish a constitutional minimum but do not purport to preclude jurisdictions from
adopting more demanding disclosure obligations by statute, rule of procedure, or rule of professional
conduct.
The drafters of Rule 3.8(d), in turn, made no attempt to codify the evolving constitutional case
law. Rather, the ABA Model Rules, adopted in 1983, carried over DR 7-103(B) into Rule 3.8(d) without
substantial modification. The accompanying Comments recognize that the duty of candor established by
Rule 3.8(d) arises out of the prosecutor’s obligation “to see that the defendant is accorded procedural
justice, that guilt is decided upon the basis of sufficient evidence,” 13 and most importantly, “that special
precautions are taken to prevent . . . the conviction of innocent persons.” 14 A prosecutor’s timely disclosure
of evidence and information that tends to negate the guilt of the accused or mitigate the offense promotes
the public interest in the fair and reliable resolution of criminal prosecutions. The premise of adversarial
proceedings is that the truth will emerge when each side presents the testimony, other evidence and
arguments most favorable to its position. In criminal proceedings, where the defense ordinarily has limited
9
Berger v. United States, 295 U.S. 78, 88 (1935) (discussing role of U.S. Attorney). References in U.S. judicial decisions to the
prosecutor’s obligation to seek justice date back more than 150 years. See, e.g., Rush v. Cavanaugh, 2 Pa. 187, 1845 WL 5210 *2 (Pa.
1845) (the prosecutor "is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the
court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for
the conviction of an innocent man.")
10
Prior to Brady, prosecutors’ disclosure obligations were well-established in federal proceedings but had not yet been extended under
the Due Process Clause to state court proceedings. See, e.g., Jencks v. United States, 353 U.S. 657, 668, n. 13 (1957), citing Canon 5
of the American Bar Association Canons of Professional Ethics (1947), for the proposition that the interest of the United States in a
criminal prosecution "is not that it shall win a case, but that justice shall be done;" United States v. Andolschek, 142 F. 2d 503, 506
(2d Cir. 1944) (L. Hand, J.) ("While we must accept it as lawful for a department of the government to suppress documents . . . we
cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the
documents relate and whose criminality they will, or may, tend to exculpate.")
11
ABA Canons of Professional Ethics, Canon 5 (1908) (“The primary duty of a lawyer engaged in public prosecution 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.”)
12
See, e.g., OLAVI MARU, ANNOTATED CODE OF PROFESSIONAL RESPONSIBILITY 330 (American Bar Found., 1979) (“a disparity
exists between the prosecutor’s disclosure duty as a matter of law and the prosecutor’s duty as a matter of ethics”). For example,
Brady required disclosure only upon request from the defense – a limitation that was not incorporated into the language of DR 7103(B), see MARU, id. at 330 – and that was eventually eliminated by the Supreme Court itself. Moreover, in United States v. Agurs,
427 U.S. 97 (1976), an opinion post-dating the adoption of DR 7-103(B), the Court held that due process is not violated unless a court
finds after the trial that evidence withheld by the prosecutor was material, in the sense that it would have established a reasonable
doubt. Experts understood that under DR 7-103(B), a prosecutor could be disciplined for withholding favorable evidence even if the
evidence did not appear likely to affect the verdict. MARU, id.
13
Rule 3.8, cmt. [1].
14
Id.
09-454 Formal Opinion
4
access to evidence, the prosecutor’s disclosure of evidence and information favorable to the defense
promotes the proper functioning of the adversarial process, thereby reducing the risk of false convictions.
Unlike Model Rules that expressly incorporate a legal standard, Rule 3.8(d) 15 establishes an
independent one. Courts as well as commentators have recognized that the ethical obligation is more
demanding than the constitutional obligation. 16 The ABA Standards for Criminal Justice likewise
acknowledge that prosecutors’ ethical duty of disclosure extends beyond the constitutional obligation. 17
In particular, Rule 3.8(d) is more demanding than the constitutional case law, 18 in that it requires
the disclosure of evidence or information favorable to the defense 19 without regard to the anticipated impact
of the evidence or information on a trial’s outcome. 20 The rule thereby requires prosecutors to steer clear
of the constitutional line, erring on the side of caution. 21
15
For example, Rule 3.4(a) makes it unethical for a lawyer to “unlawfully obstruct another party’s access to evidence or unlawfully
alter, destroy or conceal a document or other material having potential evidentiary value” (emphasis added), Rule 3.4(b) makes it
unethical for a lawyer to “offer an inducement to a witness that is prohibited by law” (emphasis added), and Rule 3.4(c) forbids
knowingly disobeying “an obligation under the rules of a tribunal . . . .” These provisions incorporate other law as defining the scope
of an obligation. Their function is not to establish an independent standard but to enable courts to discipline lawyers who violate
certain laws and to remind lawyers of certain legal obligations. If the drafters of the Model Rules had intended only to incorporate
other law as the predicate for Rule 3.8(d), that Rule, too, would have provided that lawyers comply with their disclosure obligations
under the law.
16
This is particularly true insofar as the constitutional cases, but not the ethics rule, establish an after-the-fact, outcome-determinative
“materiality” test. See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth
Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable
to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”), citing inter alia, Rule 3.8(d); Kyles, 514
U.S. at 436 (observing that Brady “requires less of the prosecution than” Rule 3.8(d)); ANNOTATED MODEL RULES OF PROFESSIONAL
CONDUCT 375 (ABA 2007); 2 GEOFFREY C. HAZARD, JR., & W. WILLIAM HODES, THE LAW OF LAWYERING § 34-6 (3d 2001 &
Supp. 2009) (“The professional ethical duty is considerably broader than the constitutional duty announced in Brady v. Maryland . . .
and its progeny”); PETER A. JOY & KEVIN C. MCMUNIGAL, DO NO WRONG: ETHICS FOR PROSECUTORS AND DEFENDERS 145 (ABA
2009).
17
The current version provides: “A prosecutor shall not intentionally fail to make timely disclosure to the defense, at the earliest
feasible opportunity, of all evidence which tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.” ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 33.11(a) (ABA 3d ed. 1993), available at http://www.abanet.org/crimjust/standards/prosecutionfunction.pdf. The accompanying
Commentary observes: “This obligation, which is virtually identical to that imposed by ABA model ethics codes, goes beyond the
corollary duty imposed upon prosecutors by constitutional law.” Id. at 96. The original version, approved in February 1971, drawing
on DR7-103(B) of the Model Code, provided: “It is unprofessional conduct for a prosecutor to fail to make timely disclosure to the
defense of the existence of evidence, known to him, supporting the innocence of the defendant. He should disclose evidence which
would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment at the earliest feasible
opportunity.”
18
See, e.g., United States v. Jones, 609 F.Supp.2d 113, 118-19 (D. Mass. 2009); United States v. Acosta, 357 F. Supp. 2d 1228, 123233 (D. Nev. 2005). We are aware of only two jurisdictions where courts have determined that prosecutors are not subject to discipline
under Rule 3.8(d) for withholding favorable evidence that is not material under the Brady line of cases. See In re Attorney C, 47 P.3d
1167 (Colo. 2002) (en banc) (court deferred to disciplinary board finding that prosecutor did not intentionally withhold evidence);
D.C. Rule Prof’l Conduct 3.8, cmt. 1 (“[Rule 3.8] is not intended either to restrict or to expand the obligations of prosecutors derived
from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.”)
19
Although this opinion focuses on the duty to disclose evidence and information that tends to negate the guilt of an accused, the
principles it sets forth regarding such matters as knowledge and timing apply equally to evidence and information that “mitigates the
offense.” Evidence or information mitigates the offense if it tends to show that the defendant’s level of culpability is less serious than
charged. For example, evidence that the defendant in a homicide case was provoked by the victim might mitigate the offense by
supporting an argument that the defendant is guilty of manslaughter but not murder.
20
Consequently, a court’s determination in post-trial proceedings that evidence withheld by the prosecution was not material is not
equivalent to a determination that evidence or information did not have to be disclosed under Rule 3.8(d). See, e.g., U.S. v. Barraza
Cazares, 465 F.3d 327, 333-34 (8th Cir. 2006) (finding that drug buyer’s statement that he did not know the defendant, who
accompanied seller during the transaction, was favorable to defense but not material).
21
Cf. Cone v. Bell, 129 S. Ct. at 1783 n. 15 (“As we have often observed, the prudent prosecutor will err on the side of transparency,
resolving doubtful questions in favor of disclosure.”); Kyles, 514 U.S. at 439 (prosecutors should avoid “tacking too close to the
wind”). In some jurisdictions, court rules and court orders serve a similar purpose. See, e.g., Local Rules of the U.S. Dist. Court for
the Dist. of Mass., Rule 116.2(A)(2) (defining “exculpatory information,” for purposes of the prosecutor’s pretrial disclosure
obligations under the Local Rules, to include (among other things) “all information that is material and favorable to the accused
because it tends to [c]ast doubt on defendant's guilt as to any essential element in any count in the indictment or information; [c]ast
doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief, that might be subject to a motion to
suppress or exclude, which would, if allowed, be appealable . . . [or] [c]ast doubt on the credibility or accuracy of any evidence that
the government anticipates offering in its case-in-chief.”)
09-454 Formal Opinion
5
Under Rule 3.8(d), evidence or information ordinarily will tend to negate the guilt of the accused
if it would be relevant or useful to establishing a defense or negating the prosecution’s proof. 22 Evidence
and information subject to the rule 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.
Further, this ethical duty of disclosure is not limited to admissible “evidence,” such as physical
and documentary evidence, and transcripts of favorable testimony; it also requires disclosure of favorable
“information.” Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer
to admissible testimony or other evidence 23 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.
In the hypothetical, supra, where two eyewitnesses said that the defendant was not the assailant
and an informant identified someone other than the defendant as the assailant, that information would tend
to negate the defendant’s guilt regardless of the strength of the remaining evidence and even if the
prosecutor is not personally persuaded that the testimony is reliable or credible. Although the prosecutor
may believe that the eye witnesses simply failed to get a good enough look at the assailant to make an
accurate identification, the defense might present the witnesses’ testimony and argue why the jury should
consider it exculpatory. Similarly, the fact that the informant has prior convictions or is generally regarded
as untrustworthy by the police would not excuse the prosecutor from his duty to disclose the informant’s
favorable information. The defense might argue to the jury that the testimony establishes reasonable doubt.
The rule requires prosecutors to give the defense the opportunity to decide whether the evidence can be put
to effective use.
The Knowledge Requirement
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.” 24 Although “a
lawyer cannot ignore the obvious,” 25 Rule 3.8(d) does not establish a duty to undertake an investigation in
search of exculpatory evidence.
The knowledge requirement thus limits what might otherwise appear to be an obligation
substantially more onerous than prosecutors’ legal obligations under other law. Although the rule requires
22
Notably, the disclosure standard endorsed by the National District Attorneys’ Association, like that of Rule 3.8(d), omits the
constitutional standard’s materiality limitation. NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION, NATIONAL PROSECUTION
STANDARDS § 53.5 (2d ed. 1991) (“The prosecutor should disclose to the defense any material or information within his actual
knowledge and within his possession which tends to negate or reduce the guilt of the defendant pertaining to the offense charged.”).
The ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, THE PROSECUTION FUNCTION (3d ed. 1992), never
has included such a limitation either.
23
For example an anonymous tip that a specific individual other than the defendant committed the crime charged would be
inadmissible under hearsay rules but would enable the defense to explore the possible guilt of the alternative suspect. Likewise,
disclosure of a favorable out-of-court statement that is not admissible in itself might enable the defense to call the speaker as a witness
to present the information in admissible form. As these examples suggest, disclosure must be full enough to enable the defense to
conduct an effective investigation. It would not be sufficient to disclose that someone else was implicated without identifying who,
or to disclose that a speaker exculpated the defendant without identifying the speaker.
24
Rule 1.0(f).
25
Rule 1.13, cmt. [3], cf. ABA Formal Opinion 95-396 (“[A]ctual knowledge may be inferred from the circumstances. It follows,
therefore, that a lawyer may not avoid [knowledge of a fact] simply by closing her eyes to the obvious.”); see also ABA STANDARDS
FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 3-3.11(c) (3d ed. 1993) (“A prosecutor should not intentionally avoid
pursuit of evidence because he or she believes it will damage the prosecution’s case or aid the accused.”).
09-454 Formal Opinion
6
prosecutors to disclose known evidence and information that is favorable to the accused, 26 it does not
require prosecutors to conduct searches or investigations for favorable evidence that may possibly exist but
of which they are unaware. For example, prior to a guilty plea, to enable the defendant to make a welladvised plea at the time of arraignment, a prosecutor must disclose known evidence and information that
would be relevant or useful to establishing a defense or negating the prosecution’s proof. If the prosecutor
has not yet reviewed voluminous files or obtained all police files, however, Rule 3.8 does not require the
prosecutor to review or request such files unless the prosecutor actually knows or infers from the
circumstances, or it is obvious, that the files contain favorable evidence or information. In the hypothetical,
for example, the prosecutor would have to disclose that two eyewitnesses failed to identify the defendant as
the assailant and that an informant attributed the assault to someone else, because the prosecutor knew that
information from communications with the police. Rule 3.8(d) ordinarily would not require the prosecutor
to conduct further inquiry or investigation to discover other evidence or information favorable to the
defense unless he was closing his eyes to the existence of such evidence or information. 27
The Requirement of Timely Disclosure
In general, for the disclosure of information to be timely, it must be made early enough that the
information can be used effectively. 28 Because the defense can use favorable evidence and information
most fully and effectively the sooner it is received, such evidence or information, once known to the
prosecutor, must be disclosed under Rule 3.8(d) as soon as reasonably practical.
Evidence and information disclosed under Rule 3.8(d) may be used for various purposes prior to
trial, for example, conducting a defense investigation, deciding whether to raise an affirmative defense, or
determining defense strategy in general. The obligation of timely disclosure of favorable evidence and
information requires disclosure to be made sufficiently in advance of these and similar actions and
decisions that the defense can effectively use the evidence and information. Among the most significant
purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the
defendant regarding whether to plead guilty. 29 Because the defendant’s decision may be strongly
influenced by defense counsel’s evaluation of the strength of the prosecution’s case, 30 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. 31 Defendants first decide
whether to plead guilty when they are arraigned on criminal charges, and if they plead not guilty initially,
they may enter a guilty plea later. Where early disclosure, or disclosure of too much information, may
undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s
identity would be revealed, the prosecutor may seek a protective order. 32
26
If the prosecutor knows of the existence of evidence or information relevant to a criminal prosecution, the prosecutor must disclose
it if, viewed objectively, it would tend to negate the defendant’s guilt. However, a prosecutor’s erroneous judgment that the evidence
was not favorable to the defense should not constitute a violation of the rule if the prosecutor’s judgment was made in good faith. Cf.
Rule 3.8, cmt. [9].
27
Other law may require prosecutors to make efforts to seek and review information not then known to them. Moreover, Rules 1.1
and 1.3 require prosecutors to exercise competence and diligence, which would encompass complying with discovery obligations
established by constitutional law, statutes, and court rules, and may require prosecutors to seek evidence and information not then
within their knowledge and possession.
28
Compare D.C. Rule Prof’l Conduct 3.8(d) (explicitly requiring that disclosure be made “at a time when use by the defense is
reasonably feasible”); North Dakota Rule Prof’l Conduct 3.8(d) (requiring disclosure “at the earliest practical time”); ABA
STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, supra note 17 (calling for disclosure “at the earliest feasible
opportunity”).
29
See ABA Model Rules of Professional Conduct 1.2(a) and 1.4(b).
30
In some state and local jurisdictions, primarily as a matter of discretion, prosecutors provide “open file” discovery to defense
counsel – that is, they provide access to all the documents in their case file including incriminating information – to facilitate the
counseling and decision-making process. In North Carolina, there is a statutory requirement of open-file discovery. See N.C. GEN.
STAT. § 15A-903 (2007); see generally Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Disbarment of Mike Nifong: The
Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (2008).
31
See JOY & MCMUNIGAL, supra note 16 at 145 (“the language of the rule, in particular its requirement of ‘timely disclosure,’
certainly appears to mandate that prosecutors disclose favorable material during plea negotiations, if not sooner”).
32
Rule 3.8, Comment [3].
09-454 Formal Opinion
7
Defendant’s Acceptance of Prosecutor’s Nondisclosure
The question may arise whether a defendant’s consent to the prosecutor’s noncompliance with the
disclosure obligation under Rule 3.8(d) obviates the prosecutor’s duty to comply. 33 For example, may the
prosecutor and defendant agree that, as a condition of receiving leniency, the defendant will forgo evidence
and information that would otherwise be provided? The answer is “no.” A defendant’s consent does not
absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept
or rely on the defendant’s consent.
In general, a third party may not effectively absolve a lawyer of the duty to comply with his Model
Rules obligations; exceptions to this principle are provided only in the Model Rules that specifically
authorize particular lawyer conduct conditioned on consent of a client 34 or another. 35 Rule 3.8(d) is
designed not only for the defendant’s protection, but also to promote the public’s interest in the fairness and
reliability of the criminal justice system, which requires that defendants be able to make informed
decisions. Allowing a prosecutor to avoid compliance based on the defendant’s consent might undermine a
defense lawyer’s ability to advise the defendant on whether to plead guilty, 36 with the result that some
defendants (including perhaps factually innocent defendants) would make improvident decisions. On the
other hand, where the prosecution’s purpose in seeking forbearance from the ethical duty of disclosure
serves a legitimate and overriding purpose, for example, the prevention of witness tampering, the
prosecution may obtain a protective order to limit what must be disclosed. 37
The Disclosure Obligation in Connection with Sentencing
The obligation to disclose to the defense and to the tribunal, in connection with sentencing, all
unprivileged mitigating information known to the prosecutor differs in several respects from the obligation
of disclosure that apply before a guilty plea or trial.
First, the nature of the information to be disclosed is different. The duty to disclose mitigating
information refers to information that might lead to a more lenient sentence. Such information may be of
various kinds, e.g., information that suggests that the defendant’s level of involvement in a conspiracy was
less than the charges indicate, or that the defendant committed the offense in response to pressure from a
co-defendant or other third party (not as a justification but reducing his moral blameworthiness).
Second, the rule requires disclosure to the tribunal as well as to the defense. Mitigating
information may already have been put before the court at a trial, but not necessarily when the defendant
has pled guilty. When an agency prepares a pre-sentence report prior to sentencing, the prosecutor may
provide mitigating information to the relevant agency rather than to the tribunal directly, because that
ensures disclosure to the tribunal.
Third, disclosure of information that would only mitigate a sentence need not be provided before
or during the trial but only, as the rule states, “in connection with sentencing,” i.e., after a guilty plea or
33
It appears to be an unresolved question whether, as a condition of a favorable plea agreement, a prosecutor may require a defendant
entirely to waive the right under Brady to receive favorable evidence. In United States v. Ruiz, 536 U.S. 622, 628-32 (2002), the
Court held that a plea agreement could require a defendant to forgo the right recognized in Giglio v. United States, 405 U.S. 150
(1972), to evidence that could be used to impeach critical witnesses. The Court reasoned that “[i]t is particularly difficult to
characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty
given the random way in which such information may, or may not, help a particular defendant.” 536 U.S. at 630. In any event, even
if courts were to hold that the right to favorable evidence may be entirely waived for constitutional purposes, the ethical obligations
established by Rule 3.8(d) are not coextensive with the prosecutor’s constitutional duties of disclosure, as already discussed.
34
See, e.g., Rules 1.6(a), 1.7(b)(4), 1.8(a)(3), and 1.9(a). Even then, it is often the case that protections afforded by the ethics rules can
be relinquished only up to a point, because the relevant interests are not exclusively those of the party who is willing to forgo the
rule’s protection. See, e.g., Rule 1.7(b)(1).
35
See, e.g., Rule 3.8(d) (authorizing prosecutor to withhold favorable evidence and information pursuant to judicial protective order);
Rule 4.2 (permitting communications with represented person with consent of that person’s lawyer or pursuant to court order).
36
See Rules 1.2(a) and 1.4(b).
37
The prosecution also might seek an agreement from the defense to return, and maintain the confidentiality of evidence and
information it receives.
09-454 Formal Opinion
8
verdict. To be timely, however, disclosure must be made sufficiently in advance of the sentencing for the
defense effectively to use it and for the tribunal fully to consider it.
Fourth, whereas prior to trial, a protective order of the court would be required for a prosecutor to
withhold favorable but privileged information, Rule 3.8(d) expressly permits the prosecutor to withhold
privileged information in connection with sentencing. 38
The Obligations of Supervisors and Other Prosecutors Who Are Not Personally Responsible for a
Criminal Prosecution
Any supervisory lawyer in the prosecutor’s office and those lawyers with managerial
responsibility are obligated to ensure that subordinate lawyers comply with all their legal and ethical
obligations. 39 Thus, supervisors who directly oversee trial prosecutors must make reasonable efforts to
ensure that those under their direct supervision meet their ethical obligations of disclosure, 40 and are
subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations. 41 To
promote compliance with Rule 3.8(d) in particular, supervisory lawyers must ensure that subordinate
prosecutors are adequately trained regarding this obligation. Internal office procedures must facilitate such
compliance.
For example, when responsibility for a single criminal case is distributed among a number of
different lawyers with different lawyers having responsibility for investigating the matter, presenting the
indictment, and trying the case, supervisory lawyers must establish procedures to ensure that the prosecutor
responsible for making disclosure obtains evidence and information that must be disclosed. Internal policy
might be designed to ensure that files containing documents favorable to the defense are conveyed to the
prosecutor providing discovery to the defense, and that favorable information conveyed orally to a
prosecutor is memorialized. Otherwise, the risk would be too high that information learned by the
prosecutor conducting the investigation or the grand jury presentation would not be conveyed to the
prosecutor in subsequent proceedings, eliminating the possibility of its being disclosed. Similarly,
procedures must ensure that if a prosecutor obtains evidence in one case that would negate the defendant’s
guilt in another case, that prosecutor provides it to the colleague responsible for the other case. 42
38
The drafters apparently concluded that the interest in confidentiality protected by an applicable privilege generally outweighs a
defendant’s interest in receiving mitigating evidence in connection with a sentencing, but does not generally outweigh a defendant’s
interest in receiving favorable evidence or information at the pretrial or trial stage. The privilege exception does not apply, however,
when the prosecution must prove particular facts in a sentencing hearing in order to establish the severity of the sentence. This is true
in federal criminal cases, for example, when the prosecution must prove aggravating factors in order to justify an enhanced sentence.
Such adversarial, fact-finding proceedings are equivalent to a trial, so the duty to disclose favorable evidence and information is fully
applicable, without regard to whether the evidence or information is privileged.
39
Rules 5.1(a) and (b).
40
Rule 5.1(b).
41
Rule 5.1(c). See, e.g., In re Myers, 584 S.E.2d 357, 360 (S.C. 2003).
42
In some circumstances, a prosecutor may be subject to sanction for concealing or intentionally failing to disclose evidence or
information to the colleague responsible for making disclosure pursuant to Rule 3.8(d). See, e.g., Rule 3.4(a) (lawyer may not
unlawfully conceal a document or other material having potential evidentiary value); Rule 8.4(a) (lawyer may not knowingly induce
another lawyer to violate Rules of Professional Conduct); Rule 8.4(c) (lawyer may not engage in conduct involving deceit); Rule
8.4(d) (lawyer may not engage in conduct that is prejudicial to the administration of justice).
____________________________________________________________________________________________________________
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL
RESPONSIBILITY
321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312)988-5300
CHAIR: Robert Mundheim, New York, NY ■ Robert A. Creamer, Evanston, IL ■ Edwin L. Felter, Jr., Denver,
CO ■ Terrence M. Franklin, Los Angeles, CA ■ Bruce A. Green, New York, NY ■ James M. McCauley,
Richmond, VA ■ Susan R. Martyn, Toledo, OH ■ Arden J. Olson, Eugene, OR ■ Mary Robinson, Downers
Grove, IL ■ Sylvia E. Stevens, Lake Oswego, OR
CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Eileen B. Libby,
Associate Ethics Counsel
©2009 by the American Bar Association. All rights reserved.
Rule 3.8: Special Responsibilities of Prosecutors and Other Government Lawyers
I. TEXT OF RULE 3.8 1
(a) A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a
criminal charge when the prosecutor or other government lawyer knows or it is obvious that the charge
is not supported by probable cause.
(b) A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to
counsel for the defendant or to a defendant who has no counsel of the existence of evidence or
information known to the prosecutor or other government lawyer that tends to negate the guilt of the
accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this
responsibility by a protective order of a tribunal.
II. NYSBA COMMENTARY
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant is accorded procedural justice
and that guilt is decided upon the basis of sufficient evidence. Applicable state or federal law may
require other measures by the prosecutor, and knowing disregard of those obligations or a systematic
abuse of prosecutorial discretion could constitute a violation of Rule 8.4. A government lawyer in a
criminal case is considered a “prosecutor” for purposes of this Rule.
[2] A defendant who has no counsel may waive a preliminary hearing or other important pretrial rights
and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should
not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented
accused persons. This would not be applicable, however, to an accused appearing pro se with the
approval of the tribunal, or to the lawful questioning of an uncharged suspect who has knowingly
waived the rights to counsel and silence.
[3] The exception in paragraph (b) recognizes that a prosecutor may seek an appropriate protective
order from the tribunal if disclosure of information to the defense could result in substantial harm to an
individual or to the public interest.
[4] [Reserved.]
[5] Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an
adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement
can create the additional problem of increasing public condemnation of the accused. Although the
announcement of an indictment, for example, will necessarily have severe consequences for the
accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement
1
Adapted from The New York Rules of Professional Conduct, Oxford University Press (Winter 2012). Chapter
written by Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns center for Ethics in the Practice of
Law, Benjamin N. Cardozo School of Law. The Rules Editor would like to thank Joanne Barken for her research
assistance.
purpose and have a substantial likelihood of increasing public opprobrium against the accused. A
prosecutor in a criminal case should make reasonable efforts to prevent persons under the prosecutor’s
supervisory authority, which may include investigators, law enforcement personnel, employees, and
other persons assisting or associated with the prosecutor, from making extrajudicial statements that the
prosecutor would be prohibited from making under Rule 3.6. See Rule 5.3. Nothing in this Comment is
intended to restrict the statements that a prosecutor may make that comply with Rule 3.6(c) or Rule
3.6(d).
[6] Like other lawyers, prosecutors are subject to Rule 5.1 and Rule 5.3, which relate to responsibilities
regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Prosecutors
should bear in mind the importance of these obligations in connection with the unique dangers of
improper extrajudicial statements in a criminal case, and should exercise reasonable care to prevent
persons assisting or associated with the prosecutor from making improper extrajudicial statements.
Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate
cautions to law enforcement personnel and other relevant individuals.
[6A] Reference to a “prosecutor” in this Rule includes the office of the prosecutor and lawyers affiliated
with the prosecutor’s office who are responsible for the prosecution function. Like other lawyers,
prosecutors are subject to Rule 3.3, which requires a lawyer to take reasonable remedial measures to
correct material evidence that the lawyer has offered when the lawyer comes to know of its falsity. See
Rule 3.3, Comment [6A].
[6B] The prosecutor’s duty to seek justice has traditionally been understood not only to require the
prosecutor to take precautions to avoid convicting innocent individuals, but also to require the
prosecutor to take reasonable remedial measures when it appears likely that an innocent person was
wrongly convicted. Accordingly, though not required by these Rules, when a prosecutor comes to know
of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the
prosecutor should examine the evidence and undertake such further inquiry or investigation as may be
necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on
the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the
underlying case; in others, it may be appropriate to await development of the record in collateral
proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to
provide a reasonable belief that the conviction should or should not be set aside. 2
[6C] Likewise, when a prosecutor comes to know of clear and convincing evidence establishing that a
conviction was wrongful, the prosecutor should disclose the new evidence to the defendant so that
defense counsel may conduct any necessary investigation and make any appropriate motions directed
at setting aside the verdict, and should disclose the new evidence to the court or other appropriate
authority so that the court can determine whether to initiate its own inquiry. The evidence should be
disclosed in a timely manner, depending on the particular circumstances. For example, disclosure of the
evidence might be deferred where it could prejudice the prosecutor’s investigation into the matter. If
2
Comment [6B] reflects the revisions to the Comments to the New York Rules of Professional Conduct made by
the NYSBA Committee on Standards and Attorney Conduct (COSAC) in November 2010.
the convicted defendant is unrepresented and cannot afford to retain counsel, the prosecutor should
request that the court appoint counsel for purposes of these post-conviction proceedings. This
Comment applies to new and material evidence of innocence, regardless of whether it could previously
have been discovered by the defense. 3
[6D] If the prosecutor comes to know of clear and convincing evidence that the defendant was convicted
of an offense that the defendant did not commit, the prosecutor should seek to remedy the injustice by
taking appropriate steps to remedy the wrongful conviction. These steps may include, depending on the
particular circumstances, disclosure of the evidence to the defendant, requesting that the court appoint
counsel for an unrepresented indigent defendant, and, where appropriate, notifying the court that the
prosecutor believes that the defendant was wrongfully convicted.
[6E] Comments [6B], [6C], and [6D] apply whether the new evidence comes to the attention of the
prosecutor who obtained the defendant’s conviction or to a different prosecutor. If the evidence comes
to the attention of a prosecutor in a different prosecutor’s office, the prosecutor should notify the office
of the prosecutor who obtained the conviction.
III. CROSS-REFERENCES
III.1 Former NY Code of Professional Responsibility
Rule 3.8 is the successor to former DR 7-103.
Specifically, Rule 3.8 (a) is identical to DR 7-103 (a).
Rule 3.8 (b) is almost identical, but Rule 3.8 (b) replaces the word “evidence” with the phrase “evidence
or information”; replaces the word “punishment” with “sentence”; and adds an exception when the
prosecutor or other government lawyer is “relieved of this responsibility by a protective order of a
tribunal.”
III.2 ABA Model Rules
ABA Model Rule 3.8 (a) provides that the prosecutor shall “refrain from prosecuting a charge that the
prosecutor knows is not supported by probable cause.”
ABA Model Rule 3.8(d) is similar in substantial respects to NY Rule 3.8(b). It provides that a prosecutor
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.”
III.3 ABA Model Rule 3.8 Contains Additional Prosecutorial Obligations Including:
3
Comment [6C] reflects the revisions to the Comments to the New York Rules of Professional Conduct made by
the NYSBA Committee on Standards and Attorney Conduct (COSAC) in November 2010.
•
3.8 (b): Make reasonable efforts to assure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
•
3.8 (c): Not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
•
3.8 (e): Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence
about a past or present client unless the prosecutor reasonably believes:
(1)
the information sought is not protected from disclosure by any applicable privilege;
(2)
the evidence sought is essential to the successful completion of an ongoing investigation or
prosecution; and
(3)
there is no other feasible alternative to obtain the information;
•
3.8 (f): Except for statements that are necessary to inform the public of the nature and extent of
the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of the
accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees,
or other persons assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this
Rule.
•
3.8 (g): When a prosecutor knows of new, credible, and material evidence creating a reasonable
likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,
the prosecutor shall:
(1)
promptly disclose that evidence to an appropriate court or authority, and
(2)
if the conviction was obtained in the prosecutor’s jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine
whether the defendant was convicted of an offense that the defendant did not commit.
•
3.8 (h): When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not
commit, the prosecutor shall seek to remedy the conviction.
IV. PRACTICE POINTERS
1.
A prosecutor has an obligation to ensure that charges are based upon probable cause. The new
Rule does not address the standard for a prosecutor to bring a charge to conclusion by either plea or
trial.
2.
Some prosecutors’ offices and individual prosecutors take the position that a prosecutor should
believe the person to be guilty beyond a reasonable doubt before taking that case to trial or resolving it
by a guilty plea.
3.
law.
Under Rule 3.8(b), the prosecutor’s disclosure obligation is more extensive than that required by
V. ANALYSIS
V.1 General Purpose of Rule 3.8
New Rule 3.8 provides guidance to prosecutors concerning their minimum disciplinary responsibilities.
The expectation is that, as a minister of justice, prosecutors routinely will and should go beyond the
minimum requirements.
To fulfill the prosecutor’s mission, some offices have manuals that contain provisions and practices to
guide the prosecutor toward best practices.
V.2 Prosecutor’s Obligation to Ensure Charges Are Based upon Probable Cause
Rule 3.8(a) affirms the prosecutor’s obligation to ensure that charges are based upon probable cause. It
does not address the standard for a prosecutor to bring a charge to conclusion by either a plea or trial.
Some offices and individual prosecutors take the position that a prosecutor should believe the person to
be guilty beyond a reasonable doubt before taking that case to trial or resolving it by guilty plea.
V.3 Prosecutor’s Disclosure Obligations
Under new Rule 3.8 (b), the prosecutor’s disclosure obligation is more extensive than that required by
law. The distinctions between the legal and ethical obligations are clearly set forth in ABA Op. 09-454,
which provides a useful overview for prosecutors in New York.
Formal Opinion 09-454 makes clear that the prosecutor’s ethical disclosure requirement under Model
Rule 3.8(d) is separate, and in many respects more expansive, than disclosure obligations under the
Constitution. ABA Model Rule 3.8(d), which mirrors the New York Rule, requires a prosecutor 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 the tribunal all unprivileged mitigating information known to the prosecutor.” The
opinion explains that Rule 3.8(d) requires disclosure of evidence or information favorable to the defense
without regard to its materially, which is more expansive than the prosecutor’s constitutional obligation
under Brady v. Maryland, 4 and the Brady line of cases, which extends only to favorable evidence that is
“material.” The Committee described Brady’s materiality requirement to limiting a constitutional right
only to disclosure of evidence “likely to lead to an acquittal.” According to the ethics opinion, Rule 3.8(d)
4
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
does not have such a materiality limitation, and while the ethical “obligation may overlap with a
prosecutor’s other legal obligations,” it is more expansive.
The Committee explained that ABA Model Rule 3.8(d) has no “de minimis” exception that would excuse
disclosure of favorable evidence or information if a prosecutor believes the material would have only a
minimal tendency to negate the defendant’s guilt or that the information is unreliable. Instead, the
opinion states that prosecutors should “give the defense the opportunity to decide whether the
evidence can be put to effective use.”
The opinion also addresses the timing of disclosure, and states that disclosure must be made early
enough so that defense counsel may use the evidence and information effectively. Reasoning that
defense counsel can use favorable evidence and information most effectively the sooner it is received,
ABA Model Rule 3.8(d) requires disclosure of such evidence and information “as soon as reasonably
practical” once it is known to the prosecutor.
Focusing on how important defense counsel’s evaluation of the strength of the prosecutor’s case is to a
defendant considering whether to plead guilty, the opinion states that timely disclosure under ABA
Model Rule 3.8(d) requires disclosure of evidence and information “prior to a guilty plea proceeding,
which may occur concurrently with the defendant’s arraignment.” If the prosecutor believes that early
disclosure or disclosure of evidence or information may compromise an ongoing investigation or
prosecution witness’ safety, the opinion advises the prosecutor to seek a protective order.
The opinion also makes clear that a defendant may not waive or consent to the prosecutor’s abrogation
of the ethical disclosure duty, and “a prosecutor may not solicit, accept or rely on the defendant’s
consent” as a mechanism to avoid ABA Model Rule 3.8(d). The opinion notes that a third party may not
absolve a lawyer of an ethical duty except in specifically authorized instances, such as consent to certain
conflicts of interest. ABA Model Rule 3.8(d) does not explicitly permit third-party consent or waiver of
the prosecutor’s disclosure obligation.
The opinion states that ABA Model Rule 3.8(d) is designed both to protect the defendant and “to
promote the public’s interest in fairness and reliability of the justice system, which requires that
defendants be able to make informed decisions.” Allowing the prosecutor to obtain a defendant’s
waiver of disclosure of favorable evidence and information undermines defense counsel’s ability to
advise the defendant whether to plead guilty and may lead a factually innocent defendant to plead
guilty.
The Committee emphasized, however, that ABA Model Rule 3.8(d) requires disclosure only of evidence
and information “known to the prosecutor,” and “does not require prosecutors to conduct searches or
investigations for favorable evidence that may possibly exist but of which they are unaware.” Still, the
Committee cautioned that a prosecutor cannot ignore the obvious or turn a blind eye to the existence of
favorable information or evidence.
The opinion notes that ABA Model Rule 3.8(d) requires disclosure to be made “in connection with
sentencing,” which requires disclosure to the tribunal as well as to the defense, sufficiently before
sentencing for the defense to use the information effectively and for the sentencing court to consider it
fully.
V.4 Duties of Lawyers with Managerial Responsibilities in Prosecutors’ Offices
ABA Formal Op. 09-454 also provides guidance to lawyers with managerial responsibility in the
prosecutor’s office. Those supervisory lawyers are obligated to ensure that subordinate lawyers comply
with ABA Model Rule 3.8(d). The supervisory lawyer who directly oversees a trial prosecutor must
ensure that the trial prosecutor meets his or her ethical disclosure obligation. A supervisory lawyer is
“subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations.” The
opinion advises such managerial lawyers to promote compliance with ABA Model Rule 3.8(d) by
adequately training subordinate lawyers and by having internal office procedures that facilitate
compliance. This supervisory obligation includes establishing procedures to ensure that the prosecutor
responsible for making disclosure receives and has access to information from other lawyers working on
the same or related cases.
V.5 Prosecutor’s Obligation for Postconviction Duty upon Learning of Evidence of Innocence
The NYSBA Comments 6 [B] through 6[E] to new Rule 3.8 address the prosecutor’s obligation for
postconviction duty upon learning of evidence of innocence. The ABA has adopted these provisions as
Rule 3.8(g) and (h). The rules had their genesis in a 2005 Report of the Professional Responsibility
Committee of the Association of the Bar of the City of New York (ABCNY). The Report was adopted and
published by the Association in 2006. 5 The Report considered various aspects of prosecutors’ duties.
Among other provisions, against the background of recent knowledge about the fallibility of the criminal
justice process, the Report proposed a rule regarding the prosecutor’s obligation to the wrongfully
convicted. The report stated: “In light of the large number of cases in which defendants have been
exonerate …. it is appropriate to obligate prosecutors’ offices to” . . . consider “credible post-conviction
claims of innocence.” 6 The premise of the proposal was that prosecutors have ethical responsibilities
upon learning of new and material evidence that shows that it is likely that the convicted person was
innocent. These responsibilities include a duty to disclose the evidence, to conduct an appropriate
investigation, and, upon becoming convinced that a miscarriage of justice occurred, to take steps to
remedy it. The ABCNY proposal was presented to the state bar’s Committee on Standards of Attorney
Conduct (COSAC), which proposed a revised version of Rules 3.8(g) and (h) that was the result of
comments from a wide range of state and federal prosecutors and district attorneys’ organizations,
defense organizations, and bar associations. Yet the Ccourts rejected these proposals and the new Rules
do not contain Rule 3.8(g) and (h).
VI. ANNOTATIONS OF ETHICS OPINIONS
5
Proposed Prosecution Ethics Rules, The Committee on Professional Responsibility, 61 The Record of the
Association of the Bar of the City of New York. 69 (2006).
6
Id. At 73.
New York: N.Y.S. Bar Op. 770 (2003) (prosecutor may agree to plea bargain to require defendant to
make donation to nonprofit organization so long as district attorney’s office does not coordinate the
program and has no personal interest in it).
N.Y.S. Bar Op. 821 (2001) (prosecutor may propose a civil resolution to a potential criminal charge only if
after sufficient investigation the prosecutor has probable cause to support the charge and believes that
it is provable).
ABA: ABA Formal Op. 09-454 (that the prosecutor’s ethical disclosure requirement under Model Rule
3.8(d) is separate, and in many respects more expansive, than disclosure obligations under the
Constitution . See more expansive discussion of the Opinion, supra.).
VII. ANNOTATIONS OF CASES
Friedman v. Rehal, No. 08-0297-pr, 2010 WL 3211054, 2010 BL 188437 (2d Cir. 2010) (petitioner, upon
plea of guilty, was convicted in state court for sodomy in the first degree, use of child in sexual
performance, sexual abuse in the first degree, attempted sexual abuse in the first degree, and
endangering welfare of minor. State court denied his request for postconviction relief, and petitioner
filed federal petition for writ of habeas corpus. The U.S.United States District Court for the Eastern
District of New York dismissed petition and granted certificate of appealability. Petitioner appealed.
While the court did not provide the legal relief requested, it found the New York District Attorney had a
continuing ethical obligation under Rule 3.8 to seek justice because the record suggested “a reasonable
likelihood” that petitioner was wrongfully convicted.).
People v. Almendarez, 876 N.Y.S.2d 861 (1st Dept. 2009) (where prosecutor becomes aware that the
wrong person has been charged with driving while intoxicated, the prosecutor cannot simply amend the
name of the defendant. The prosecutor must dismiss the charge against the innocent party and file a
separate action against the correct defendant.).
People v. Miller, 539 N.Y.S.2d 782 (2d Dept. 1989) (prosecutor’s fundamental obligation is to seek
justice, not just convict. Prosecutor made an improper attack on the defendant’s lifestyle and
intentionally mischaracterized the defense.).
People v. Gelfand, 499 N.Y.S.2d 573 (Kings County, 1986) (as officers of the court, prosecutor has duty to
ensure that valid indictment is obtained. Prosecutors must take action to correct defects, such as
notifying the court when a substantial number of jurors are absent from a Grand Jury proceeding.).
People v. Unroach 64 N.Y. 2d 905 (1985) (usually prosecutor has an obligation to bring a discrepancy in
testimony to the attention of the court. However, where the discrepancy was already known to the trial
judge through an in camera hearing, the trial judge should have released so much of the in camera
minutes as related to the informant’s answer. The judge’s failure to do so did not result in an unfair trial
in this case.).
People v. Jones, 387 N.Y.S.2d 779; aff’d 44 NY 2d 76 (1976) (prosecutors do not have legal duty prior to
guilty plea to inform defense counsel that the complaining witness died).
VIII. BIBLIOGRAPHY
ABA Standards for Criminal Justice, Prosecution Standards 3-2, 3-3, 3-4.
Frank Bowman, A Bludgeon by Any Other Name: The Misuse of “Ethical Rules” Against Prosecutors to
Control the Law of the State, 9 GEO. J. LEGAL ETHICS 665 (1996).
Joel Cohen, Sandbagging and Guilty Plea Offers, N.Y.L.J. (Dec. 13, 2011).
Federal Rules of Criminal Procedure 16, 26.2.
Stanley Fisher, Just the Facts, Ma’am: Lying and Omission of Exculpatory Evidence in Police Reports, 28
NEW ENG. L. REV. (1993).
Wayne Garris, Jr., Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful
Convictions, 22 GEO. J. LEGAL ETHICS 829 (2009).
Bruce Green, Prosecutorial Ethics as Usual, 2003 U. ILL. L. REV. 1573 (2003).
Niki Kuckes, Appendix A: Report to the ABA Commission on Evaluation of the Rules of Professional
Conduct Concerning Rule 3.8 of the ABA Model Rules of Professional Conduct: Special Responsibilities of
a Prosecutor, 22 GEO. J. LEGAL ETHICS 463 (2009).
Niki Kuckes, The State of Rule 3.8: Prosecutorial Ethics Reform Since Ethics 2000, 22 GEO. J. LEGAL
ETHICS 427 (2009).
Robert Morvillo &and Robert Anello, Media: Defendant’s Friend or Foe, N.Y.L.J. (Dec. 6, 2011).
Faculty Biographies
Bruce A. Green is the Louis Stein Professor at Fordham Law School, where he directs the
Louis Stein Center for Law and Ethics. He teaches and writes primarily in the areas of legal
ethics and criminal law, and is involved in various professional activities in these fields.
Professor Green currently serves on the Multistate Professional Bar Examination drafting
committee and recently chaired the ABA Criminal Justice Section. He previously served on the
ABA Standing Committee on Ethics and Professional Responsibility, and as the Reporter to
both the ABA Task Force on Attorney-Client Privilege and the ABA Commission on
Multijurisdictional Practice. Since joining the Fordham faculty in 1987, Professor Green has
also engaged in various part-time public service, including as a member of the NYC Conflicts of
Interest Board, on the attorney disciplinary committee in Manhattan, as Associate Counsel in
the office of the Iran/Contra prosecutor, and as a consultant and special investigator for the NYS
Commission on Government Integrity. Previously, Professor Green was a federal prosecutor in
the Southern District of New York, where he served as Chief Appellate Attorney, and he was a
judicial law clerk to Justice Thurgood Marshall and Circuit Judge James L. Oakes.
Timothy Koller received a bachelor’s degree in political science and business in 1977 from St.
John’s University and a J.D. in 1980 from Pace University School of Law. Appointed an
Assistant District Attorney in Richmond County in 1980, Koller has served there for 32 years as
a misdemeanor prosecutor, Chief of the Career Criminal Unit, Chief of the Investigations
Bureau, Chief of the Supreme Court, and Executive Assistant District Attorney, a position that
he currently holds where he oversees the day-to-day operations of that office.
In addition to being admitted to practice law in New York, Koller is a member of the Bar of the
State of New Jersey, the U. S. District Courts for the Eastern and Southern Districts of New
York, and the U.S. Court of Military Appeals. He is a member of the Richmond County Bar
Association, the New York State Bar Association, where he serves as a member of the Criminal
Justice Section Executive Committee, the National District Attorneys’ Association, as well as the
District Attorneys Association of the State of New York (DAASNY), where he serves as a
member of the Best Practices Committee. Koller has lectured at the NYPD Police Academy, the
New York State Division of Criminal Justice Services Basic Prosecutors’ Course, as well as
numerous continuing legal education presentations. He has also served as an Adjunct
Professor in both the graduate and undergraduate programs at St. John’s University.
John O’Mara began his career at the Kings County District Attorney’s office as a trial attorney in
the Criminal Court, Supreme Court, Sex Crimes and Homicide Bureaus. He then became Chief
of the Early Case Assessment, Investigations and Homicide Bureaus, and Executive Assistant
District Attorney. Currently he is Deputy District Attorney and Chief of the Convictions Integrity
Unit. Mr. O’Mara is a member of the Best Practices Committee of the District Attorneys
Association of the State of New York (DAASNY). He received a B.A. from George Washington
University and a J.D. from Georgetown University Law Center, cum laude and Associate Editor
of the American Criminal Law Review.
John Schoeffel is an attorney with the Special Litigation Unit of The Legal Aid Society's
Criminal Defense Practice. He authored Legal Aid’s discovery reform proposal for New York
State (2009; updated 2013). He has trained defense attorneys in many parts of New York on
Brady and Discovery issues. He is a graduate of New York University School of Law and
Harvard College.
Ellen Yaroshefsky is Clinical Professor of Law and the director of the Jacob Burns Ethics
Center at the Benjamin N. Cardozo School of Law in New York.
She teaches a range of ethics courses, organizes symposia, and writes and lectures in the field
of legal ethics. Ms. Yaroshefsky also counsels lawyers and law firms and serves as an expert
witness. She is co-chair of the American Bar Association’s Ethics, Gideon and Professionalism
Committee of the Criminal Justice Section, chair of the Ethics Committee of the National
Association of Criminal Defense Lawyers, and serves on ethics committees of state and local
bar associations. Prior to joining the Cardozo faculty, she was an attorney at the Center for
Constitutional Rights in New York. She began her career as an attorney for the Puyallup Tribe in
Tacoma, Washington and subsequently was a criminal defense lawyer in Seattle, Washington.
She has received a number of awards for litigation and received the New York State Bar
Association award for “Outstanding Contribution in the Field of Criminal Law Education.”
Erin Flynn is a New York Criminal Defense attorney. She is a member of NYCLA’s Criminal
Justice and Young Lawyers Sections and chair of this program. She is a volunteer attorney at
CT Pro Bono Network and has previously volunteered at the Prisoners’ Rights Project, The
Legal Aid Society. She received a BA from Boston College and a JD from American University,
Washington College of Law.
The Honorable Barry Kamins is Administrative Judge of the Criminal
Court of the City of New York and Administrative Judge for Criminal
Matters, Second Judicial District. He was appointed a Criminal Court
Judge by Mayor Michael Bloomberg on September 11, 2008 and was
elevated to Acting Supreme Court Justice on May 6, 2009. He was elected a
Supreme Court Justice, effective January 1, 2013.
Judge Kamins is the former President of the Association of the Bar of
the City of New York. He co-chairs the Advisory Committee on Criminal
Law and Procedure for the Chief Administrative Judge of New York, as
well as the New York State Permanent Sentencing Commission. The
Commission was established in October 2010 by Chief Judge
Jonathan Lippman and is charged with evaluating sentencing laws and
recommending reforms on sentencing policy, statewide.
Judge Kamins is a member and special advisor to the New York State
Justice Task Force, established in 2009 by Chief Judge Jonathan Lippman.
The Task Force is the only judicially created, permanent body in the nation
to address wrongful convictions. Judge Kamins also chaired the New York
State Bar Association’s Task Force on Wrongful Convictions.
Judge Kamins is an Adjunct Professor at Brooklyn Law School and
Fordham Law School where he teaches New York criminal procedure. He
is the author of New York Search and Seizure, a leading treatise on the
Fourth Amendment. Judge Kamins also writes the Criminal Law and
Practice Column for the New York Law Journal.
He is currently a member of the New York Law Journal Board of
Editors, the New York State Bar Association Journal’s Board of Editors and
a member of the Board of Trustees of the Historical Society of the Courts of
New York State. Judge Kamins is past Chairman of the Grievance
Committee of the 2nd and 11th Judicial Districts. In addition, he is a former
member of the New York State Continuing Legal Education Board.
From 1969 to 1973, Judge Kamins served as an Assistant District
Attorney in Kings County where he was Deputy Chief of the Criminal
Court Bureau. Before his appointment to the bench, he was a partner in
Flamhaft Levy Kamins Hirsch & Rendeiro, LLP.
Judge Kamins lectures extensively on criminal law for the Office of
Court Administration and to prosecutors and defense attorneys. Over the
years, he has served on several committees to address issues in the
criminal justice system: the Commission on the Future of Indigent Defense
Services; the Commission on Drugs and the Courts; the Committee to
Promote Public Trust and Confidence in the Legal System; the Committee
on Guidelines for Representation of Indigent Defendants; the New York
State Task Force on Processing Civilian Complaints by the New York City
Criminal Court; and the Assigned Counsel Plan Advisory Committee of
the Appellate Division, Second Department.
He received a B.A. from Columbia College and a J.D. from Rutgers
University Law School.