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August 26, 2009

Posted by Alexandra Natapoff at 11:51 AM

New ABA opinion on prosecutorial duty to disclose information

The American Bar Association just released an important new opinion regarding the prosecutorial ethical duty to disclose evidence and information favorable to the defense. The rule itself requires prosecutors 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." The opinion interprets this ethical mandate very broadly: it is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties. Here are a few key excerpts:

Rule 3.8(d) is more demanding than the constitutional case law in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial's outcome. . . .The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.

The ethical duty of disclosure is not limited to admissible 'evidence' . . .; 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 or assist him [sic] in other ways, such as in plea negotiations.

For the disclosure of information to be timely, it must be made early enough that the information can be used effectively. . . . Once known to the prosecutor, [evidence and information] must be disclosed under Rule 3.8(d) as soon as reasonably practical. . . 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.

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.

This is an extremely important opinion for informant law and practice, for several reasons...(more after the break)

First is that a great deal of snitch litigation involves so-called Brady or Giglio claims (see this previous post), in which it is alleged that the prosecution withheld information from the defense about snitch witnesses. The ABA opinion not only reiterates the importance of prosecutorial disclosure generally, but explains that the prosecutor's ethical obligation to hand over favorable information is broader than her constitutional obligation. In other words, even if the Constitution does not require disclosure, the prosecutor has an independent professional duty to disclose. While the violation of this duty will not invalidate a conviction, it could lead to professional discipline or firing.

Another interesting feature of the opinion is that prosecutorial supervisors must "establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed." This includes keeping track of information in one case that might need to be disclosed by a different prosecutor in another case. In other words, prosecutor offices must have data collection and dissemination mechanisms by which their employees can comply with their ethical obligations. This position contrasts with the recent Supreme Court decision in Van de Kamp v. Goldstein this year, in which the Court held that prosecutorial supervisors could not be sued for failing to create data collection systems to provide informant-related impeachment material to defendants. While under Van de Kamp a chief prosecutor cannot be sued for the office’s lack of disclosure procedures, under the ABA opinion she could be disciplined.

In effect, the ABA has decided that the Supreme Court's decisions on prosecutorial disclosure are too weak, ethically speaking, and that prosecutors and their supervisors have far stronger professional obligations to disclose information to defendants, including information about government informants.

Ethical obligations are a crucial feature of the legal profession--attorneys can be disciplined, fired, or disbarred if they violate the ethical rules of their jurisdiction. Disclosure obligations are likewise central to prosecutorial integrity. Attorney General Eric Holder recently threw out the corruption case against Alaska Senator Ted Stevens because Holder concluded that DOJ lawyers violated their obligation to disclose information to the defense. NPR story here. Insofar as states and prosecutors take this new ABA directive seriously, it could be a powerful engine for increased disclosure and transparency.

On a more technical note (non-lawyers may want to tune out here), the opinion does not explicitly address a constitutional issue raised by the Supreme Court in Ruiz. The Ruiz Court distinguished between exculpatory Brady material--material that directly pertains to the defendant’s guilt or innocence--and exculpatory Giglio impeachment material--material suggesting that the state's witness is lying. Classic Giglio includes information about informant rewards, the informant's criminal record, prior history of cooperation or falsehoods, or anything that would impeach the informant's credibility. The Ruiz Court held that although Giglio material is a form of Brady material, the government can withhold that information from defendants prior to the entry of a plea, although not prior to trial. The ABA opinion makes clear, however, that prosecutors cannot wait for trial, but have to disclose information early enough so that defendants can use it meaningfully during plea negotiations.

The question is therefore whether Rule 3.8(d) applies to Giglio impeachment material in the same way that it applies to information that "tends to negate the guilt of the accused." In my view, it does, although I recognize that the ABA opinion does not expressly say yes or no, nor does it distinguish between Brady and Giglio the way the Court did in Ruiz. The opinion does say, however, that a prosecutor's ethical disclosure obligations are broader than her Brady disclosure obligations, which would suggest that the ABA did not think that the Ruiz distinction matters in the ethical context.

Perhaps more fundamentally, the opinion's broad language seems consistent with requiring prosecutorial disclosure of Giglio impeachment. The opinion says that prosecutors must disclose any information favorable to the defense, even if it's not material to the outcome, and that the defense gets to decide on its utility, particularly in figuring out whether to go to trial, plead guilty, or investigate other evidence. These are precisely the sort of decisions that are made based on impeachment material. The ABA even contemplates the situation where the government wants to withhold the identity of an informant: the opinion says that the government can seek a protective order, not that the government can withhold the information. In sum, it would seem anomalous for the opinion to require such broad disclosure, but then permit a prosecutor to withhold the fact that her main witness is being compensated for his testimony and has lied in previous cases.


ABA opinions are all well and good, but that is all they are. They are not binding in any state and most prosecutors are not even members of the ABA anyway. Most supervisory prosecutors will discount the opinion on the basis that the authors have no idea how criminal cases are developed and probably will not bother to change any of their internal policies. So I would not take this opinion to the bank. And good luck using this to get a trial judge to change her mind on disclosure motions and such.

Very few prosecutors are ever brought up on ethics charges. Even in cases where appellate courts find prosecutorial misconduct, little is ever done. And since our Supreme Court has given prosecutors and their supervisors absolute judicial immunity from civil liability, when making the calculus between a conviction and the attendant public support and approval attendant upon that, as well as job advancement and, in the alternative, dumping a prosecution by playing by the rules, my guess is that the rules lose most times.

If you want this ABA opinion to have any consequence, you need to get it put into your criminal code or rules of criminal procedure or your state rules of professional conduct.

If, as the prior post suggests, prosecutors will not warm to this opinion, consider that most prosecutors chafe at the idea of a bunch of defense lawyers and civil practicioners (their view of the ABA) writing ethics rules for public prosecutors. Where's the special rule for the "special obligations of criminal defense lawyers"? And, more fundamentally, why should the ABA--rather than, say, the publicly-elected legislature--be enacting rules applicable to public employees?? Regardless of the merits, this seems fundamentally wrong.

The ABA would go a long way if it was less hostile to prosecutors as members and active participants. It could, for example, lower its exceptionally high membership fees for public employees (because, otherwise, it becomes a very expensive magazine subscription). And prosecuting agencies, like the U.S. Department of Justice, could (and should) take steps to involve line attorneys (and not just high-level bureaucrats) in the ABA's work.

I agree that ethics rules are often largely symbolic and that there should be more discussion among the different groups to whom they matter. I think the ABA opinion is still an important expression of professional values, though, and as this thread suggests, can inform the larger discussion of how disclosure should be handled.

Also, while the ABA's model rules and the commentary or opinions discussing them do not have the force of law or rule, they are sometimes used as the basis for state rules which do create duties for lawyers.

Also, courts sometimes refer to the ABA or other model rules if they have to interpret and apply a rule provision that covers the same ground but is less specific or detailed.

Defense attorney's are not government officials with such as prosecutors who most if not all state rules or codes of professinal conduct/responsibity already recognize have a unique role in the justice system. Prosecutors are not merely advocates but government gent with a duty to see that justice is done.

Defense lawyers do have ethical obligations to the court and opposing counsel but their role is an advocate for the person who is facing the awesome power of the government.

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