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).