“Discovery” disclosures are an ethical obligation, not just a legal requirement.


Formal Opinion 09-454 July 8, 2009

Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense.

This ethical opinion reinforces the rule that the prosecutors obligation to disclose certain types of information to the defense is self-executing – that is Brady, Kyles, Giglio, and similar material must be disclosed even though the defense has not submitted a formal discovery request — and goes beyond what the R.C.M. and appellate decisions say.  So, for example, a prosecutor has an ethical duty to disclose certain information she learns during pretrial interviews of prosecution witnesses.

Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in Brady v. Maryland, 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.

Courts as well as commentators have recognized that the ethical obligation is more demanding than the constitutional obligation.  The ABA Standards for Criminal Justice likewise acknowledge that prosecutors’ ethical duty of disclosure extends beyond the constitutional obligation.

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.

Here’s an interesting point about whether discovery may be waived for a pretrial agreement?  Apparently not under the ethical rule.

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.”

Here’s an eminently reasonable requirement for SJA’s or others who encourage or condone holding back cards.

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, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations.  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.

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