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American Bar Association Issues New Guidelines on Prosecutorial Ethics

The American Bar Associate recently issued an important opinion expanding a prosecutor's ethical duties.  Significantly, the ABA has interpreted the Rules of Professional Conduct to be more demanding than constitutional requirements under Brady v. Maryland.  The ethical bar has been raised.

Entitled, "Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense," Formal Opinion 09-454 begins:

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “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, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. 

Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

The opinion is here.  Scott Greenfield comments here.  This is a huge development, given that many jurisdictions mimic the ABA's interpretations of the Rules of Professional Conduct.

Yes, ABA Opinions are advisory, and thus do not have force of law.  States can incorporate the ABA's new interpretation.  Judges can also give Formal Opinion 09-454 legal effect.  Indeed, one federal judge already has.

District Court Judge Emmet Sullivan has issued a Standing Order that incorporates by reference Formal Opinion 09-454.  In proceedings in United States v. Zhenli Ye Gon, Judge Sullivan told federal prosecutors

"I don't want to spend a lot of time on Brady because if no one knew about Brady before [the ex-Sen. Ted] Stevens [case], everyone does now, and I've crafted a standing order I'm going to issue," Sullivan said at the hearing. "Everyone's fairly aware of everyone's—of the government’s Brady obligations and that’s just not an issue that’s open for debate."

In light of rampant prosecutorial misconduct within the Department of Justice, more federal judges should make Formal Opinion 09-454 part of their standing orders.