Prosecutorial ethics: the duty to disclose exculpatory material.

AuthorSinha, Hans P.

INTRODUCTION

THIS IS THE SECOND ARTICLE IN A SERIES that examines the ethical rules and professional standards applicable to prosecutors. The goal is to provide guidance and information as to the more common ethical and professional concerns a prosecutor is faced with in executing his duties. The first article discussed the ethical and professional duties surrounding a prosecutor's charging decision. It did so by examining section (a) of Rule 3.8 of the Model Rules of Professional Responsibility. This article addresses section (d), the duty to disclose exculpatory material, and examines the frequently recurring issues surrounding the overriding duty of the prosecutor to disclose to the defense evidence that "tends to negate the guilt of the accused or mitigates the offense." By skipping sub-sections (b), ensuring certain procedural and constitutional rights of the defendant are protected, and (c), not obtaining waiver of important pre-trial rights from an unrepresented accused, I do not in any way seek to denigrate the importance of those duties. These legal precepts, discussed in subsequent articles, are just as crucial to the conscientious and ethical prosecutor as is his duty to disclose exculpatory material. However, as can be seen from the sheer amount of jurisprudence devoted to the ethical concepts and the legal precepts encompassed in Rule 3.8(d), the prosecutor's duty to disclose exculpatory evidence to the defense cuts to the very core of his duty as both an advocate and as a minister of justice.

THE RULES AS A PYRAMID

Viewing the Rules of Professional Conduct as a pyramid, Rule 3.8 would constitute the summit of this pyramid. Not only does this rule speak specifically to the unique responsibilities of the prosecutor, but recognizing the uniqueness and power of prosecutors, it is also the only rule drafted specifically for one segment of the profession. Significantly, there are no special rules for criminal defense attorneys, tax lawyers or corporate lawyers, or any other type of lawyers. Prosecutors, as indicated by the title of Rule 3.8, the "Special Responsibilities of a Prosecutor," and by the historical development of the rule, have responsibilities above and beyond those of other lawyers. This is not to say that the remaining 56 Model Rules of Professional Conduct are un-important to prosecutors. They are. In fact, in order to join the legal profession, many jurisdictions require aspirants, including future prosecutors, to take an oath affirming that they have read or are familiar with all the Rules of Professional Conduct.

Staying with the pyramid depiction of the rules in terms of relevance to prosecutors, the second level would include those rules that, although not directed specially towards prosecutors, nevertheless address issues that arise on a regular basis in their daily work. While arguments may be made about which rules should fall in this category, most would agree that a group of ten rules belong here. These ten rules are: Rule 3.3, Candor toward the Tribunal; Rule 3.4, Fairness to Opposing Party and Counsel; Rule 3.5, Impartiality and Decorum to the Tribunal; Rule 3.6, Trial Publicity; Rule 4.1, Truthfulness in Statements to Others; Rule 4.2, Communication with Person Represented by Counsel; Rule 4.3, Dealing with Unrepresented Person; Rule 4.4, Respect for Rights of Third Person; Rule 8.3, Reporting Misconduct; and Rule 8.4, Misconduct.

The remaining 45 rules, from the perspective of relevance to a prosecutor, are found at the bottom of this rules pyramid. These rules are relevant to prosecutors in terms of governing the profession as a whole. They do not, however, affect the prosecutor as he goes about his daily routine of protecting the public by prosecuting those in society who demonstrate an inability to conform to the rule of law in the same fundamental way as do the rules on the second level and on the summit of this rules pyramid.

RULE 3.8(D): THE PINNACLE OF THE RULE

If Rule 3.8 is viewed in its entirety as being the pinnacle of the rules pyramid, then section (d) can be viewed as the pinnacle of the rule itself. The duty expressed in (d), that a prosecutor cannot fulfill his role as a minister of justice unless he discloses exculpatory material to the defense, speaks to the very essence of the prosecutor's special responsibilities.

The notion that a prosecutor has as much a duty to convict the guilty as he has to ensure that the innocent are not prosecuted, was clearly expressed in the very first ethical code for lawyers devised in America. The Alabama 1887 Code of Ethics, succinctly and pointedly stated that "[t]he state's attorney is criminal, if he presses for a conviction, when upon the evidence he believes the prisoner innocent." (1) Similarly, Canon 5 of the American Bar Association's 1908 Canons of Professional Ethics noted that "[t]he suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible." (2) The American Bar Association's Model Code built upon these earlier ethical rules, mandating in sub-section (B) of DR 7-103, "Performing the Duty of Public Prosecutor or Other Government Lawyer," the timely disclosure of evidence known to the prosecutor "that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment." (3)

The concepts expressed in these earlier rules remain true today. Section (d) of Rule 3.8 of the Model Rules of Professional Conduct thus mandates that:

The Prosecutor in a criminal case shall:

(d) 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, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. (4)

RULE 3.8(D) STATE VARIATIONS

Rule 3.8 of the Model Rules consists of six sections. Some states tweak or omit entire sections. Maine, Illinois and Ohio, for example, fall in the latter category with regard to section (b) of the Model Rules. AS such these three states do not require their prosecutors to "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel." (5) Similarly, a majority of states modify section (f) of the Model Rules by either editing, shortening, or eliminating in its entirety the dictate concerning extra-judicial comments by prosecutors. (6) Possibly recognizing that the duty to disclose exculpatory material cuts to the core of the special responsibilities of a prosecutor in much the same way Rule 3.8 cuts to the core of the role of the prosecutor as a whole, no state has completely abandoned the concepts espoused in sub-section (d). Nevertheless, important variations of this section do exist among the states.

The nation's 51 state level jurisdictions can be divided into four groups in terms of their Rule 3.8(d) or equivalent language. The first group consists of 36 states that have adopted the Model Rule language verbatim. (7) The second group is comprised of 12 jurisdictions that have adopted Model Rule 3.8(d) but made minor edits. (8) Most of these edits are limited to language choice, though some add qualifications to the duties. The third group consists of two jurisdictions--Alabama and the District of Columbia--that have affirmatively added an element of intent to their Rule 3.8(d) language. The addition of this intent element, at least theoretically, dramatically changes when a prosecutor can be disciplined for failing to disclose exculpatory material. Finally, one state, California, has chosen to go it alone, not having adopted language similar to either the Model Rule or the Model Code in terms of the prosecutor's duty to disclose exculpatory material. (9)

Despite these differences, the fact all jurisdictions have adopted, if not the exact language, at least the substance and meaning of Rule 3.8(d) is significant. In fact, even states that have seen fit to otherwise substantially modify the Model Rule, do not eliminate section (d). Hawaii and Oregon, for example, have adopted a truncated version of Rule 3.8 with only two sections as opposed to the Model Rules' six sections, while Florida's and Kentucky's rules contain three sections. (10) Despite heavily editing the rule as a whole, none of these four states changed section (d). Clearly, as a whole, learned members of state bar associations and state supreme courts across the nation, have given a resounding vote of approval to the exculpatory disclosure duties imposed upon prosecutors by Rule 3.8(d).

This, however, does not mean that the language of Rule 3.8(d) is necessarily absolutely clear, nor that the language selected by both the American Bar Association, and by 36 jurisdictions is the best or optimal language. As with any rule or statute, the language chosen, no matter how carefully and deliberately, can leave areas in need of further clarification. The issue of what is meant with "timely disclosure" and what is meant with "known to the prosecutor" are examples of such areas. Similarly, as with representative government, sometimes the minority view, no matter how small, may be the better view. These, and some other recurring issues are discussed below.

TIMELY DISCLOSURE, KNOWN TO THE PROSECUTOR, AND THE ELEMENT OF INTENT

Whether the language of Rule 3.8(d) is clear or not, the meaning of the duty imposed by the rule is clear. "A prosecutor has the responsibility of a...

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