The confusing timing of impeachment evidence disclosure.

Author:Polando, Graham C.
Position:Feature: The Prosecutor

EVEN THE GREENEST LINE PROSECUTOR knows that Brady generally requires him or her to disclose exculpatory evidence to the defendant. Indeed, the Supreme Court recently held that "Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain." (1) Nevertheless, when a prosecutor questions what Brady requires regarding when he must disclose exculpatory impeachment evidence, that legal research will often increase, rather than alleviate, the prosecutor's uncertainty.

In United States v. Ruiz, (2) a unanimous Supreme Court held that while impeachment material is a critical component of Brady disclosure, prosecutors need not provide such material to a defendant pleading guilty. The right to impeach government witnesses is a trial right, the Court reasoned, and therefore one of many such rights given up by a defendant's guilty plea.

But the American Bar Association's Standing Committee on Ethics and Professional Responsibility (the "Committee") has suggested otherwise. Boston College Law Professor R. Michael Cassidy convincingly states that, in its Formal Opinion 09-454, the Committee has interpreted its Model Rule of Professional Conduct 3.8(d) to require that prosecutors disclose all exculpatory evidence to all defendants, even those pleading guilty) Nearly every state has adopted Model Rule 3.8(d), making the ABA's interpretation of its own rule highly persuasive to state courts and ethics commissions. Professor Cassidy predicts a "looming battle" between prosecutors and defense counsel over the timing of impeachment disclosure. Indeed, the conflict between the constitutional and ethical authorities and the unworkable "solution" Formal Opinion

09-454 advocates, should concern every prosecutor.


Formal Opinion 09-454 rests its conclusions on a curious principle: a profound separation between Brady's requirements and those of Model Rule 3.8(d). The Committee observes that the ethical obligation to disclose exculpatory evidence predates Brady, and was never intended to codify it, arguing that the prosecutor's responsibility under Model Rule 3.8(d) is "independent" of the constitutional obligation. (4)

This claim of "independence" is a bit curious. When the Supreme Court has expanded Brady's coverage, the Model Rule appears to have duly incorporated it. (5) Yet when the Court contracts it, as it has with impeachment evidence for the pleading...

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