Prosecutors’ Ethical Duty to Reveal Information Favorable to Defense is Broader Than Constitution Demands, Says ABA Ethics Opinion

CHICAGO, Aug. 20, 2009—Prosecutors face a stronger duty to disclose information that might help defendants fight criminal charges under American Bar Association Model Rules of Professional Conduct than they do under the U.S. Constitution. But they are not obliged to search for information favorable to the defense.

Those are the conclusions of the ABA Standing Committee on Ethics and Professional Responsibility in an ethics opinion released today.

The disclosure requirement is grounded in a prosecutor’s role as “a minister of justice, and not simply that of an advocate,” carrying “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,” said the committee. ABA ethical standards have recognized a prosecutorial duty to not suppress facts that could establish innocence since 1908, more than 50 years before the Supreme Court of the United States ruled in Brady v. Maryland that the Constitution’s Due Process Clause extends the disclosure obligation beyond federal prosecutors to include state court prosecutors, noted the committee.

The committee said ethics Rule 3.8(d) requires prosecutors to share even information that they do not deem credible, while the Constitution only requires them to reveal “material” information, or evidence or material they view as likely to lead to acquittal. “The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility,” said the committee, explaining disclosure is required if information “would be relevant or useful to establishing a defense or negating the prosecution’s proof.” Disclosure must be timely, which the committee defined as “early enough that the information can be used effectively,” and as soon as reasonably practical.

The rule requires disclosure of information favorable to a defendant that might not be admissible at trial or sentencing, but that might lead a defense lawyer to testimony or evidence that would be admissible, or that would assist the defense in such uses as negotiating plea bargains. Pre-trial uses of the information could include conducting defense investigations, generally planning defense strategy, deciding whether to raise affirmative defenses and advising defendants whether to plead guilty. In assessing whether information must be disclosed, prosecutors must consider any legally acceptable potential defense, not simply those already raised by defendants or their lawyers, under the opinion. And the obligation exists even when the prosecutor believes the evidence to be highly unreliable, said the committee, noting there is no minimal threshold of value that triggers the requirement.

Because the rule addresses only evidence and information “known to the prosecutor,” including information that “may be inferred from circumstances,” a prosecutor need not launch an investigation to search for evidence favoring the defense. But the prosecutor also may not “ignore the obvious,” said the committee. Where warranted, prosecutors may ask judges for protective orders limiting or overriding the disclosure obligation, such as when early disclosure or disclosure of too much information might undermine an investigation or jeopardize a witness, according to the opinion. The committee specifically noted that a defendant cannot absolve the prosecutor of the disclosure requirement by waiving it, for example, in negotiating for leniency, meaning a prosecutor cannot solicit, accept or rely on defendant consent.

There are differences in the disclosure requirement when sentencing is pending, said the committee. The nature of the information involved may vary, in that it could mitigate the sentence, leading to leniency rather than acquittal. Thus timing of disclosure could vary, and its disclosure to the judge as well as to the defense would be required.

The opinion also restates the responsibility of managerial and supervisory lawyers in prosecutor offices to assure subordinate lawyers comply with all their ethical responsibilities, including disclosure of information favorable to defendants.

The opinion, Formal Opinion 09-454, is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships. Opinions are dated to reflect when committee members voted, rather than the publication date.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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