Discovery audits: Model Rule 3.8(d) and the prosecutor's duty to disclose.

• Author: Parajon, Christina

As a society, we have entrusted our prosecutors with discretion. Discussions of prosecutorial discretion often surround charging decisions, plea bargaining, and the general ability to "control the terms of [a defendant's] confinement." (1) However, a prosecutor also exercises discretion in determining what information to share with his adversary.

In the discovery context, prosecutors have a two-fold ethical duty. They must not abuse their discretion by deciding whether to withhold or disclose evidence in ways that are generally "unfair or unwise." (2) In addition, both the Supreme Court, in Brady v. Maryland, (3) and Model Rule of Professional Conduct 3.8(d) (4) have imposed positive limits on the prosecutor's disclosure discretion. The prosecutor's ethical exercise of discretion is also complicated by his duty, on the one hand, to "zealously assert[] the client's position under the rules of the adversary system," (5) and on the other, to seek justice. (6) The ethical complexities involved suggest that prosecutors require clear guidance regarding their professional responsibilities. A well-functioning criminal justice system also demands adequate structures to monitor compliance with the guidelines provided.

However, commentators and policymakers alike have recognized that the current system is inadequate to these tasks. (7) After the Ted Stevens case was dismissed for discovery-related misconduct, (8) the Department of Justice (DO]) implemented a working group to review the Department's discovery policies and practices. (9) Two recently issued DOJ memoranda, one providing "Guidance for Prosecutors Regarding Criminal Discovery" (10) and another "Requir[ing] ... Office Discovery Policies in Criminal Matters," (11) are the fruits of this effort. The contents of these memos are a testament to the DOJ's commitment to (and willingness to expend resources on) structural and policy changes to federal discovery practices. The challenge now is to continue this effort to draw brighter lines regarding the criteria, timing, and procedures for disclosing material to the defense, and to design more reliable structures for policing the boundaries of permissible discovery discretion.

This Comment proposes audits as a solution. Part I discusses the current approaches to regulating criminal discovery under the Constitution and the Model Rules. Part II discusses two audit-type regulatory models from which a prosecutorial audit system might borrow. Part III then outlines the contours of a hybrid audit system, which aims to provide substantive guidance through a quality assurance approach, and to improve internal compliance by leveraging the principles of managerial regulation.

1. CURRENT METHODS OF REGULATING PROSECUTORS' DISCLOSURE

   1. The Brady Rule

      In a landmark criminal discovery case, Brady v. Maryland, the Supreme Court held that due process requires prosecutors to disclose exculpatory material and information to the defense. (12) Accordingly, the prosecution's suppression of "favorable" evidence "where the evidence is material to either guilt or to punishment" requires reversal of a conviction on the grounds that the trial was fundamentally unfair. (13)

      Over time, a body of Brady jurisprudence developed that defined the doctrine's reach. Significantly, the Court devised a "materiality" standard in United States v. Bagley. (14) Under the materiality standard, suppression of putatively favorable information will not give rise to a constitutional violation unless that piece of information or evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (15) This means that individual suppressions are not considered piecemeal--rather, the withheld evidence is considered in context, against all other evidence adduced in the case. (16) While the materiality touchstone might provide a good metric for assessing due process violations, as an ethical standard, it sets a low bar. To this effect, critics have pointed out that "under the Supreme Court's current disclosure rules, the prosecutor's decision to suppress favorable evidence would be a perfectly rational, albeit unethical, act." (17)

   2. Model Rule of Professional Conduct 3.8(d)

      The Model Rules of Professional Conduct, in theory and intent, compensate for Brady's shortfalls. In particular, Rule 3.8(d) states that:

      The prosecutor in a criminal case shall ... make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.... (18) In a July 2009 formal opinion, the American Bar Association (ABA) tried to dispel the misconception "that the rule requires no more from a prosecutor than compliance with the constitutional and other legal obligations of disclosure." (19)

      To the contrary, the Rule's requirements exceed those of the Constitution in several key respects. First, disclosure of favorable information and evidence is required irrespective of its materiality, that is, "without regard to the anticipated impact of the evidence or information on a trial's outcome." (20) The Rule intends for the defense, not the prosecution, to "decide on [the] utility" (21) of the information, "thereby requir[ing] prosecutors to steer clear of the constitutional line, erring on the side of caution." (22) Second, the Rule imposes a procedural responsibility on managers in prosecution offices to implement internal systems for ensuring compliance. (23) This also arguably exceeds constitutional expectations, considering that the Supreme Court held in Van de Kamp v. Goldstein that prosecutorial supervisors enjoy immunity from suits complaining of failures to create internal data systems to ensure all Giglio material (24) is discovered. (25)

      Notwithstanding the clarification, the Model Rule remains vague on several scores. Indeed, the ABA has bemoaned that neither courts nor local disciplinary authorities have adequately considered the "separate obligations" regarding discovery that the Model Rule imposes. (26) For one, interpretive guidance on what is considered "favorable" is scant. Moreover, there is no settled understanding of the level of care required to satisfy the Rule's instruction to disclose favorable evidence "known to the prosecutor." (27) The Rule, on its face, does not require prosecutors to ferret out favorable information; they simply cannot "ignore the obvious." (28) This stance suggests that the Rule requires no affirmative duty. Yet in some...