ABA Opinion Re: Prosecutor's Ethical Duty to Disclose Exculpatory Evidence v. Constitutional Duty to Disclose

This summer, the ABA Standing Committee on Ethics and Professional Responsibility issued an formal opinion regarding the scope of a prosecutor's ethical duty under Model Rule 3.8(d) to disclose exculaptory evidence and information. As you know, Rule 3.8(d) of the Idaho Rules of Professional Conduct mirrors that of the ABA Model Rules, and provides:

"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 infomration known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal."

Of importance, the opinion concludes a prosecutors duty under Rule 3.8(d) is independent and broader than that imposed pursuant to Brady and the due process clause. Focusing on the history of the rule, the opinion notes:
1.) It is not limited to evidence that is "material" and there is not a "de minimis" exception." Thus, the prosecutor must turn over all information even if they believe that it "has only a minimal tendency to negate the defendant's fuilt, or that the favorable evidence is highly unreliable."
2.) The duty to disclose is not limited to admissible evidence, and includes information that may be inadmissible.
3.) Disclosure must be made "as soon as reasonably practical" once it is known to the prosecutor.
4.) Rule 3.8(d) is non-waivable, and a "prosecutor may not solicit, accept or rely on the defendant's consent" as a means to avoid their ethical obligation.

The opinion notes the obligation extends to favorable evidence known to the prosecutor. Knowledge is defined as actual knowledge that may be inferred from the circumstance. While the Rule does not impose a duty to ascertain exculpatory evidence, the opinion notes a prosecutor may not ignore the obvious.

In addition, the opinion explores the ethical obligation of supervisors and disclosure for sentencing.

Of importance, the commentary to Rule 3.8, I.R.C.P., does not contain a discussion of Idaho's rule or the scope thereof. Accordingly, the ABA opinion should be persuasive guidance for Idaho courts. As a practical matter, it may be helpful to include a copy or cite of the opinion in all future discovery request to alert the State to their enhanced ethical obligation of disclosure.

The text of the opinon can be found at: http://www.abanet.org/cpr/09-454.pdf. Further, the Winter 2010 issue of ABA Criminal Justice contains a useful discussion of the recent opinion. (Vol. 24, No.4, pages 41-44).

Pair of Miranda Decisions from SCOTUS

The U.S. Supreme Court has issued a pair of decisions interpreting Miranda doctrine. This morning the Court held that there is an exception to Edwards v. Arizona, which required the assertion of the right to counsel to be scrupulously honored, which now permits the police to resume questioning after a "break in custody." Seven justices state that if the break lasts more than two weeks between interrogations, that Edwards does not require suppression.

Maryland v. Shatzer, http://www.supremecourtus.gov/opinions/09pdf/08-680.pdf

Yesterday, a variation of the Miranda warnings used in Florida was found to be adequate. The Court held that “Advice that a suspect has ‘the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,’ and that he can invoke this right ‘at any time . . . during the interview,’ satisfies Miranda.” Even though that advisement does not expressly state that the defendant has the right to the presence of a lawyer.

Florida v. Powell, http://www.supremecourtus.gov/opinions/09pdf/08-1175.pdf

Justice Stevens dissented in Powell noting "the Florida Supreme Court concluded that'[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning," and that the warnings given to Powell did not satisfy either the State or the Federal Constitution." Therefore, the USSCt did not have jurisdiction to review the state court judgment as it rested on "an adequate and independent state-law ground that the warnings provided to Powell did not sufficiently inform him of the 'right to a lawyer’s help' under the Florida Constitution[.]"

This state constitutional analysis might be a good way to attack the decision in Idaho Courts.

Justice Stevens then disagreed with the Court’s decision on the merits noting that the right to have counsel present at an interrogation was described in Miranda as being "indispensable to the protection of the Fifth Amendment privilege." He then noted that, the form regularly used by the Tampa police warned Powell that he had "the right to talk to a lawyer before answering any of our questions," which informed Powell "only of the right to consult with a lawyer before questioning," which the the Miranda Court itself identified as insufficient notice to protect the Fifth Amendment privilege.

You know, it seems obvious to me that the right to consult with a lawyer before questioning is not the same as having the right to the presence of a lawyer during questioning. And, it's disappointing that the USSCt goes out of its way in this case to apply the old "close enough for police work" rule.

By the way, I'm going to miss Justice Stevens when he retires, as expected, at the end of the term. His nomination was the best thing to happen during the Ford Administration. Justice Ginsburg, the author of Powell, and the next expected retirement, will not be missed as much. (See March 9, 2009 SCOIDBlog where it was noted that "Justice Ginsburg has hit the Trifecta in bad rulings for criminal defendants this term.")

Friday at the Court

The Court hears oral argument in State v. Pierce today.

Pierce presents an interesting challenge on appeal. He is arguing that the information filed against him does not confer subject-matter jurisdiction because it was filed after a grand jury had ignored the charge. According to the Supreme Court press release: "Pierce argues the evidence demonstrates that a proceeding before a grand jury was held before the information was filed, and that the grand jury failed to indict; Pierce argues, consequently, his conviction based upon the information violated Article I, § 8 of the Idaho Constitution."

Article I, § 8 provides "that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor." Now while some people might be skeptical of a claim that the prosecutor filed a charge after the grand jury failed to indict, the Dalling case reminds us to not assume all is kosher with grand jury proceedings. In Dalling, the Ada County prosecutors held a grand jury past the expiration of its term, without getting an order from District Court, in order to get an indictment before the statute of limitations expired. Alert defense counsel caught on and got the indictment dismissed. (For more information see State v. Dalling, 128 Idaho 203, 911 P.2d 1115 (1996).)

Today at the Court: Wednesday Edition

The Court hears two criminal cases today. The first is State v. Munoz. The Court of Appeals decision was discussed in Unexplained Inconsistent and Irreconcilable Testimony Made Under Oath at Different Proceedings Cannot be Deemed Credible. (SCOIDBlog March 25, 2009).

This case presents the question of whether there is sufficient evidence to support a trial court's finding that the police officer's second version of what happened at a search (the one that favored the state) was more credible than the original version (the one that favored the defendant) when the inconsistency is not explained and where the state bore the burden of proving an exception to the warrant requirement existed. There is also an Arizona v. Gant issue here.

In the second case, State v. Frederick, the state concedes that the search of a truck violated Arizona v. Gant, but asks the Court to apply a "good faith" exception to the rule that evidence seized pursuant to an illegal search must be excluded.

The good-faith exception in federal courts is usually applied to searches where the police obtain a warrant, not warrantless searches which are incident to arrest. And there is no good-faith exception to the warrant requirement in Idaho. Plus new rules of criminal procedure apply retroactively to all cases not yet final. So, the state's argument seems like a triple stretch to me. Moreover, one wonders why the police in this case should get a pass on their unconstitutional search when the police in Gant didn't.

Today at the Court

Today the Court will rehear the case of State v. Pina. In the Court’s original opinion, issued last July, Justice W. Jones and Justice pro tem Kidwell found that the district court's felony-murder jury instruction was reversible error. Justice Burdick and Justice Horton dissented. Justice J. Jones agreed with much of the dissent, but agreed with the lead opinion that the instruction was reversible error.

The July opinion can be read here:
http://www.isc.idaho.gov/opinions/State%20v.%20Pina..pdf

Wendell Juvenile Curfew Case Argued

You might recall that the Court of Appeals found that the Wendell juvenile curfew ordinance was unconstitutionally overbroad because it prohibited a wide range of constitutionally protected conduct. The law prohibits minors from being in public between the hours of 11 p.m. and 5 a.m.

The Supreme Court granted review of the case and it was argued yesterday.

The Court will also hear argument in four criminal cases next week. I'll preview each of them on the day of argument.

Ambiguous Plea Agreement Read In Favor of Defendant

Wade Peterson was arrested for possession of a controlled substance and some misdemeanors. The PCS was dismissed by the magistrate because the State had failed to obtain a lab report and the misdemeanors were sent to magistrate court. Later, a new criminal complaint was filed charging the previously dismissed PCP, but the case was never joined with the misdemeanors.


Later, Mr. Peterson appeared before a magistrate and entered into an oral Rule 11 settlement with the State. He pleaded guilty to the misdemeanor concealed weapon charge, and the remaining charge under that complaint, misdemeanor possession of drug paraphernalia, was dismissed. His attorney stated that the plea agreement was intended to resolve all charges and the prosecutor did not dispute that statement.

Mr. Peterson completed his probation for the concealed weapon charge, but was then arrested on the PCP charge. The district court denied his Motion to Dismiss on double jeopardy grounds, rejecting his claim that the possession of a controlled substance charge had already been disposed of by the plea agreement, but the Supreme Court reversed.

First, the Court noted that "[a]mbiguities in a plea agreement are to be interpreted in favor of the defendant. As with other contracts, provisions of plea agreements are occasionally ambiguous; the government ordinarily must bear responsibility for any lack of clarity.‟ (Internal citations omitted.)

Second, the Court found that Mr. Peterson had met his burden of proving the existence and content of that contract through the introduction of the transcript of the plea hearing. "The record before us demonstrates that Peterson understood the plea agreement to be in resolution of all charges arising from his August 20, 2003, arrest."

The Court ordered that the conviction be vacated.

State v. Peterson, http://www.isc.idaho.gov/opinions/peterson%20final%20opn.pdf

Hats off to Diane Walker of SAPD for a job well done!

Once Over Quickly

I'm heading out of town for a few days, but wanted to post links to two new opinions issued by the Court before I go.

The first, Schoger v. State, holds, among other things, that there is no right to plead guilty in Idaho. Ms. Schoger tried to plead guilty to an amended drug trafficking charge with a five year mandatory minimum. The Court found that her factual basis was sufficient and then refused to even consider allowing her to enter an Alford plea. At no time did the court ask the state to provide a factual basis. There obviously was one because she went to trial and was found guilty of the ten year mandatory minimum charge. She argued that she had a right to plead guilty to the amended charge and that the court abused its discretion in refusing to accept her attempted Alford plea. The Court disagreed.

Schoger v. State, http://www.isc.idaho.gov/opinions/Schoger%20Opinion.pdf

There's better news in State v. Johnson, http://www.isc.idaho.gov/opinions/State%20v.Johnson.Opinion.pdf. Mr. Johnson was charged two counts of L&L for allegedly molesting his daughter in 2004. During the trial the court allowed evidence showing that he had molested his little sister when he was a teenager. The Supreme Court held this was error and reversed the convictions.

It wrote that "at a minimum, there must be evidence of a common scheme or plan beyond the bare fact that sexual misconduct has occurred with children in the past. The events must be linked by common characteristics that go beyond merely showing a criminal propensity and instead must objectively tend to establish that the same person committed all the acts."

Congratulations to Elizabeth Allred of SAPD!