In the famous case of Brady v. Maryland (373 U.S. 83), the US Supreme Court in 1963 expanded Constitutional due process rights for criminal defendants by requiring prosecutors to disclose exculpatory material to defense counsel. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."Brady, 373 U.S. at 87. Evidence is considered material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The reversal of a conviction is required upon a "showing that the [undisclosed] favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435. While state laws may differ in the manner in which pre-trial discovery is disclosed by prosecutors (e.g. timing), the disclosure of exculpatory evidence, or Brady evidence, is obligatory across all state and federal courts.
In addition to the procedural safeguards established by Brady, however, prosecutorial conduct with respect to disclosure is also governed by the Model Rules of Professional Conduct. The Model Rules contain the basic code of ethics for lawyers across the nation and contain additional ethical responsibilities for prosecutors (prosecutors, unlike other attorneys, are not meant to be zealous advocates for their clients, but rather, serve as “minister[s] of justice.” (Comment  to Model Rule 3.8)) Specifically, Model Rule 3.8(d) states that a 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, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
The wording of Model Rule 3.8 is distinctly different from that of Brady, as the key term, “material,” is conspicuously absent in the Model Rules. The Model Rule on its own suggests a greater ethical obligation on the part of prosecutors than required under the Constitution as it has been interpreted by Brady and its progeny. And to clarify the distinction between the two sets of standards, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454 this summer in order to emphasize that the Model Rules set forth a higher standard than that which is required under the Constitutional due process. The Ethics Committee states that Rule 3.8 “requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome.” Such evidence includes “both that which tends to exculpate the accused when viewed independently and that which tends to be exculpatory when viewed in light of other evidence or information known to the prosecutor.” Furthermore, a prosecutor’s ethical duties require the disclosure of any favorable information, not necessarily in the form of admissible evidence. The Ethics opinion explains: “Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence or assist him in other ways, such as in plea negotiations.” In the same vein, a prosecutor, according to this Ethics opinion, must consider all possible defenses a defendant may raise, and not only those that the defense counsel has indicated an intention to pursue, when determining what information should be turned over. Additionally, said information must be handed over to the defense while it still has utility; that is to say, in time for the defense to effectively plan its case (before a guilty plea is given or a trial is underway). (It should be noted that the disclosure requirements of Model Rule 3.8(d) and Brady may be relieved only by a court’s protective order.)
The position of the ABA Standing Committee stands in stark contrast with the stance of the Department of Justice as described last week by Lanny Breuer, Assistant Attorney General, at a discussion among lawyers and judges who are considering amending the Federal Rules of Criminal Procedure. In the wake of the North Carolina case involving Duke University lacrosse team members, and more recently, the Ted Stevens case, stricter disclosure requirements are being considered. As reported by the New York Law Journal, Mr. Breuer pitched a “‘comprehensive approach’ to reform” with respect to prosecutorial discovery issues. However, according to the New York Law Journal’s article, Main Justice Proposes Reforms on How Prosecutors Handle Evidence (Volume 242, October 20, 2009), Mr. Breuer “said the [US Justice] department would fight any effort to require prosecutors to turn over all favorable information to the defense.” “Eliminating materiality, he said, ‘seriously comes into conflict’ with victim rights, witness security and, in some cases national security.”
-Catherine Shearn, intern, Galluzzo & Arnone LLP