Exculpatory Evidence and Grand Juries

• Publication year: 1999
• Pages: 47
• Citation: Vol. 28 No. 4 Pg. 47

28 Colo.Law. 47 Colorado Lawyer 1999.

1999, April, Pg. 47. Exculpatory Evidence and Grand Juries

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47

Vol. 28, No. 4, Pg. 47

The Colorado Lawyer
April 1999
Vol. 28, No. 4 [Page 47]

Specialty Law Columns
Criminal Law Newsletter
Exculpatory Evidence and Grand Juries
by Steven A. Radetsky

In January 1993, the Colorado Rules of Professional Conduct ("Colo. RPC") went into effect. These rules, with their accompanying comments, were adopted from the American Bar Association's Model Rules of Professional Conduct and include several provisions of concern to prosecutors. One of these provisions is Colo. RPC 3.3(d), which states "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." The accompanying official comment to Rule 3.8, which deals with the "Special Responsibilities of a Prosecutor," originally noted among other things, that grand juries are included in the ex parte proceedings referred to in Colo. RPC 3.3(d).

Requiring Colorado prosecutors to disclose exculpatory evidence to grand juries was a new ethical duty that went substantially beyond the previous requirement of disclosing such evidence to the other side only after charges are filed.1 Subsequently, the Colorado Supreme Court deleted this comment. However, the wording of Colo. RPC 3.3(d) and other provisions in the Rules still creates enough of a question about a prosecutor's duty to disclose exculpatory evidence to a grand jury, and makes it worthwhile to explore this topic.

U.S. Supreme Court and Federal Case Law

The U.S. Supreme Court has determined that federal prosecutors have no such obligation. In United States v. Williams,2 the Court reversed a Tenth Circuit decision affirming the dismissal of an indictment for failure of the prosecutors to reveal "substantial exculpatory evidence" to the grand jury. The Court based its decision on two premises: (1) that it would be a violation of the separation of powers doctrine for the courts to tell federal prosecutors what type of evidence to present to the grand jury, and (2) that, in any event, a grand jury sits not to determine guilt or innocence but to assess whether there is adequate basis for bringing a criminal charge. The Tenth Circuit has subsequently adopted the Williams opinion.3

The rule that the Supreme Court reversed in Williams had been adopted in various forms by many of the federal circuits prior to this opinion. The Tenth Circuit gave the approach used by several of these circuits in United States v. Page, when it stated that

[a]lthough a prosecutor need not present all conceivably exculpatory evidence to the grand jury, it must present evidence that clearly negates guilt. . . . If a fully informed grand jury cannot find probable cause to indict, there is little chance the prosecution could have proved guilt beyond a reasonable doubt to a fully informed petit jury.4

The Seventh and Eighth Circuits adopted similar requirements for deciding what kind of exculpatory evidence prosecutors had to reveal to grand juries.5 The standard used by these three circuits was based on a rule derived from the ABA Project on Standards for Criminal Justice—The Prosecution Function, which originally stated: "No prosecutor should knowingly fail to disclose to the grand jury evidence which would tend substantially to negate guilt." Subsequently, this rule was modified to require prosecutors to disclose to grand juries all "evidence which tends to negate guilt or mitigate the offense."6

The Second Circuit took a somewhat different approach in holding that substantial evidence negating guilt should be disclosed "at least where it might reasonably be expected to lead the...