Wednesday, August 26, 2009

New ABA ethics opinion requires more disclosure from prosecutors than constitutional obligations

Alexandra Natapoff at the Snitching Blog brings word of a recent but little-publicized American Bar Association opinion (pdf) defining the scope of prosecutors' ethical duty to disclose information favorable to the defense. As she describes it, the new rule:
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.
What's more, says Natapoff:
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. (emphasis added) 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 officeâ€™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.

This seems like a pretty significant development, though I hadn's seen it reported previously. Neither Google News nor the Texas prosecutors' discussion board showed any mention of the topic that I could find, so Alaexandra apparently is your go to source. See the rest of her post for more highlights and analysis.

Perhaps relatedly, one wonders how this might apply to prosecutors disclosing "evidence" that they themselves had fabricated?


Jeff Gamso said...

To paraphrase a Frank Capra movie title, It's a Wonderful Opinion. Alas, like the Frank Capra movie, it's a fantasy to imagine that things might work like that in the real world.

There's a word for prosecutors who don't fulfill their ethical obligations: "Judge."

There are, of course, decent, honest, fair prosecutors. But those who don't recognize favorable evidence ("Gee, but I didn't believe the confession, that's why I didn't think it was favorable to you") won't recognize favorable information any more readily. And courts which too often have no interest in enforcing constitutional niceties of discovery sure aren't going to be clamping down on prosecutors for being ethically insensitive.

Still, it'll be fun to wave it around.

Rage Judicata said...


Anonymous said...

Using "Texas," "courts," "prosecutors," and "ethics" together seems to be a quadruple oxymoron.

TxBluesMan said...


One thing to remember is that an ABA opinion has no inherent enforceability on attorneys.

All this does is relate to the 'model rules' say and not to what each state establishes as their guidelines.

Unless a prosecutors or other attorneys conduct violate the ethical standards of their local jurisdiction, it doesn't matter what the ABA says, other than to attempt to change opinion.

There will be a number of states that adopt this. There will be other that don't.

FairPlay said...

CCP Art. 2.01 - Duties of District Attorney's

"...It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done..."

At times I wonder if some prosecutors have ever read the CCP. I guess it just depends on you definition of "Justice" in determining if justice is done.

msfitz said...

I cited those words regarding the duties of a prosecutor; namely, that the prosecutor should seek justice not conviction as a primary goal. It seems to me that the Ashcroft rules are to seek the most serious penalties possible.
We live in a world where real justice is most often denied in the mandatory-minimun sentencing mindset.

Anonymous said...

Hate to disappoint you all, but Texas is ahead of the curve on this one. Our State Bar rule regarding prosecutors' Brady obligations has been in place for years and is broader than the constitutional duty.

Brody said...

There's also the fact that a majority of jurisdictions have open file policies. If a defense attorney comes into my office I'll happily hand him the very file I'm working off of. He's welcome to look at everything except the notes I made to myself. Nearly all the Texas prosecutors I know have some version of this policy. In my jurisdiction at least, if the defense attorney doesn't know about it, it's not through my hiding it.

Anonymous said...

Plus, the difference between "evidence" and "information" is a distinction without a difference as far as this prosecutor is concerned. If it's material and relevant to the case, it's EVIDENCE, whether or not it's actually admissible in court, and whether or not it's actually offered or admitted at trial. If it's not EVIDENCE, it's not in my file. Honestly, I know you think we're all a bunch of degenerates, but most prosecutors I know don't have the luxury of the kind of time it would take to go making that sort of distinction anyway, given the caseload. Additionally, turning over the EVIDENCE, not just the exculpatory and inculpatory portions, leads a skilled defense attorney to properly advise his client. Many times, that proper advise is, "You're screwed. Take the plea." It's incredibly naive and not at all a reflection of the real world to believe that the majority of prosecutors out there aren't frankly discussing the ENTIRE case with opposing counsel; that's what a plea negotiation is. When no one plays hide-the-ball, everyone's caseload moves, something all prosecutors actually like.

Anonymous said...

It's hard to believe Texas is anywhere near the ABA on this! Especially with lawyers making deals behind their own clients back to sell them out with horrendously long sentences. Why can't we sue lawyers? I can be sued for 27 years in my profession. NO statue of limitations for me. If a person goes to prison it may be 30 or 40 years before they can get around to filing a law suit against a bad representation and a lawyer that decieved his or her client. A lawyer like that should loose his license, but it's all a part of the good ole' boy system prevalent here in Texas. I wish he (This lawyer that locked my husband up) had a conscience. If you are in prison how can you complain to the BAR about a bad lawyer? Who believes you when you are prison? And if you are in longer than 2 years your statute of limitations has run out. Lawyers are above the law. It's a sad thing more of them aren't ethical. At least the ABA is trying to set a gold standard.