Chapter 9 Discovery

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 9 DiscoveryBrady Material

In Formal Opinion 09-454 (July 8, 2009), the ABA Standing Committee on Ethics and Professional Responsibility issued an opinion that interprets Rule 3.8(d) of the Model Rules of Professional Conduct. The opinion states that aside from constitutional (in the case of Brady, due process), statutory (regarding Brady, this would be 18 U.S.C. § 3500, the Jencks Act), procedural (in this case, Federal Rules of Criminal Procedure 16 and 26.3), or court-imposed obligations (i.e. Brady¹), the prosecutor has an ethical obligation to disclose evidence and information favorable to the defense. The opinion explains the reasons that Rule 3.8 expands the prosecutorial Brady obligation, in which limitations dictated by the categorizing of material were removed. In other words, Rule 3.8 states that the prosecutor must disclose all information that "tends to negate the guilt of the accused or mitigates the offense". The opinion also states that such information includes "that which tends to be exculpatory when viewed in light of the other evidence or information known to the prosecutor." Rule 3.8(d)and the ABA Formal Opinion recognize the inherent dysfunction of the prosecutor determining what is "exculpatory" to the defense. It is a burden and responsibility a prosecutor should not bear. The Rule and the Opinion also recognize that a requirement limiting disclosure to only that information deemed "exculpatory" does not promote fairness or justice.²

While some jurisdictions have strict internal procedures and rules on what may be released to the defense, others are more flexible. Here are some thoughts for prosecutors concerning discovery practices. A prosecutor ought to consider that each item that is withheld from the defense creates a litigation opportunity for the defendant. A prosecutor can end up expending a great deal of energy and resources explaining to a judge why something was withheld. The judge could agree with the defendant and impose sanctions or order a retrial. These are consequences that may be worse for the pursuit of justice than turning over the item in the first place. Many jurisdictions and prosecutors have an "open file" policy in which the defendant is provided with a copy of the prosecution's file, excluding attorney work product and information that is privileged.³ If a prosecutor chooses to use the phrase "open file policy," that implies a continuing duty to comply with such a policy.⁴

This isn't to say that one...