20.05. Duty to disclose exculpatory information [Rule 3.8(d)]

Rule 3.8(d) is perhaps the starkest example of how prosecutors differ from attorneys in civil cases.  In civil cases, the discovery process governs disclosure of information and documents.  Litigants produce what is asked for – but no more.  Therefore, if a party fails to ask for a crucial piece of evidence there is no obligation on the other side to volunteer the information.  However, a prosecutor is in a different position.  The goal of a prosecutor is to see that justice is done – not to win.  Therefore, a prosecutor has an obligation to voluntarily disclose exculpatory information to the defendant.  This obligation has both ethical and constitutional aspects.  The ethical requirement in Rule 8.3(d) is considered broader than the constitutional requirement.  The ethical disclosure obligation arises in two situations:  during the prosecution and at sentencing.  During the prosecution, the prosecutor must voluntarily disclose “all evidence… that tends to negate the guilt of the accused or mitigates the offense….”  At sentencing, the obligation is to “disclose… all unprivileged mitigating information known to the prosecutor” except where a protective order would prevent disclosure.

This ethical obligation exists along with the prosecutor’s obligations to a criminal defendant to ensure that the defendant’s constitutional (due process) rights are protected.  This right was first set out in Brady v. Maryland.[1]  In Brady, two individuals – Brady and Boblit – were charged with murder in the course of a robbery.  They were tried separately.  Boblit gave several statements to police about the crime.  Brady’s attorney requested the statements and the prosecutor turned over all by one of the statements.  In the statement that was not turned over, Boblit admitted tohaving been the gunman.  Brady was subsequently tried and convicted.  Brady filed a claim for post-conviction relief alleging that his right to a fair trial was violated because the prosecutor failed to turn over the statement.  The Supreme Court agreed and held:

“suppression by the prosecution of evidence favorable to an accused upon request violate due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[2]  The evidence must be turned over in time for the defense to make use of it (not immediately when the prosecutor learns about it), and the prosecutor only must turn over “material” evidence.[3]  In addition, the burden is on the prosecutor to affirmatively determine if investigators or others have evidence that must be disclosed.

There are three primary distinctions between the ethical obligation and the constitutional obligation.  While the constitutional standard can be violated even if the prosecutor is acting in good faith and just does not know about the exculpatory information, Rule 3.8(d) requires that the prosecutor “know” about the evidence to be sanctioned.  In that way the ethical obligation is narrower than the constitutional standard.  Second, Brady requires that the information being disclosed must be “material” to the matter.  For example, some courts have held that Brady disclosure only applies to evidence that would be admissible, while the ethics rules refers to “information” – a broader term.  The ethical standard does not have a materiality requirement.  Third, the ethical standard can be read to require disclosure to defense counsel immediately when the prosecutor learns of the information – not within enough time for the defendant to use the information.[4]

Courts faced with the differing standards have taken different approaches.  Some courts have held that the prosecutor is bound by both Brady and the broader ethical obligations.  Some courts have held that a prosecutor should not be bound by two potentially conflicting standards and have limited the duties to what is required by Brady.[5]  Some courts have not yet ruled on the issue.[6]

Fred Weichel was convicted of first-degree murder and sentenced to life in prison without parol.  The determinative evidence linking Weichel to the crime was an alleged eye witness who said that he saw the killer from about 185 feet away. Using a police sketch of the killer, Weichel was identified as the killer (even though he did not match the sketch in height or weight).  After the conviction, in post-conviction proceedings it was discovered that one of the police departments working on the case had written a memo identifying someone else as the murderer based on the sketch.  The prosecutor did not know that the memo existed and it was never disclosed.  Is this a Rule 3.8(d) violation?  A Brady violation? [Commonwealth v. Weichell, Nos. 1980-76394 & 1981-7714 (Mass. Super. Ct. 2017)][7]

This is a Brady violation, but no ethical violation.  It is a Brady violation because the information was material and exculpatory and not disclosed.  However, the prosecutor did not act unethically because he did not know about the memorandum that was not disclosed – which is required by Rule 3.8(d).

[1] 373 US. 83 (1963).

[2] Brady v. Maryland, 373 US. 83, 87 (1963).

[3] Kyles v. Whitley, 514 US. 419 (1995).

[4] See Michael D. Ricciuti, Caroline E. Conti, and Paolo G. Corso, “Criminal Discovery:  The Clash Between Brady and Ethical Obligations,” 51 Suffolk U. L. Rev. 399 (2018).

[5] See In re Sestrunk, 236 So. 3d 509, 519 (La. 2017) (refusing to “impose inconsistent disclosure obligations upon prosecutors”).

[6] Michael D. Ricciuti, Caroline E. Conti, and Paolo G. Corso, “Criminal Discovery:  The Clash Between Brady and Ethical Obligations,” 51 Suffolk U. L. Rev. 399, 411-13 (2018) (discussing the various approaches).

[7] Case is discussed in Michael D. Ricciuti, Caroline E. Conti, and Paolo G. Corso, “Criminal Discovery:  The Clash Between Brady and Ethical Obligations,” 51 Suffolk U. L. Rev. 399, 417-18 (2018)