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Non- Brady Legal and Ethical Obligations on Prosecutors to Disclose Exculpatory Evidence Prepared for the National Registry of Exonerations by Marc Allen July 2018 Introduction This memo is a survey of authorities, other than the Due Process Clause of the Fourteenth Amendment, that require state prosecutors to disclose exculpatory evidence to criminal defendants. In addition to constitutional constraints, prosecutors and police may also be bound by ethics rules, statutes, professional standards, and court rules. In Brady v. Maryland the Supreme Court held that “suppression by the prosecution of evidence favorable to the accused … violated due process where the evidence is material either to guilt or to punishment.”^1 Subsequent cases expanded this rule to information that could be used for impeachment and information known to other members of the prosecution team, such as police.^2 Commentators have written extensively on the doctrinal and practical limitations of Brady and its progeny.^3 Alternate constraints on prosecutors, like ethics and discovery rules, are important places to look for practitioners and policy advocates. These rules have the potential to patch holes in Brady , and because they vary by state, they are a good place to look for comparison and experimentation. The American Bar Association (ABA) has promulgated standards for prosecutors and model ethical rules, both of which address a prosecutor’s responsibility to disclose exculpatory evidence to a defendant. All states impose this obligation in one form or another through their respective professional conduct rules. Some states also include similar requirements in their criminal procedure rules. A single state, California, has created criminal liability for prosecutors who fail to disclose exculpatory evidence. Another state, New Hampshire, interprets the due process clause of its state constitution to require a slightly more scrutiny, or at least to function slightly differently, than Brady. Most states allow police to develop their own protocols for dealing with exculpatory evidence, but a small number of states have passed legislation specifying certain standards. ABA Criminal Justice Standards for the Prosecution Function The most comprehensive, widely available standards for prosecutorial conduct are the American Bar Association’s (“ABA”) Criminal Justice Standards. The ABA has developed Criminal Justice Standards since 1968. In 2015, the ABA approved the most recent version of its Criminal (^1) 373 U.S. 83, 87 (1963). (^2) Giglio v. United States , 405 U.S. 150 (1972); Kyles v. Whitley , 514 U.S. 419, 437 (1995). (^3) See, e.g ., Supreme Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 Ind. L.J. 481, 482 (2009); Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 531, 534 (2007).
Justice Standards for the Prosecution Function (“ABA Standards”).^4 The standards are not enforceable. They are intended to be read as best practices for prosecutors and are meant to supplement the Model Rules for Professional Conduct.^5 Three ABA standards – specifically 3-1.2, 3-3.11, and 3-5.6 – touch on a prosecutor’s responsibilities in regards to exculpatory evidence. Standard 3-1.2, which addresses the broad responsibilities of a prosecutor, make clear that justice, and not a conviction, is a prosecutor’s ultimate goal in any given case: Standard 3-1.2 Functions and Duties of the Prosecutor (a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function. (b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. This standard goes on to state that a prosecutor should “know and abide by the standards of professional conduct … in the applicable jurisdiction,” and support remedial action to address injustices. Standard 3-5.4 fleshes out the prosecutor’s obligation to coordinate with its own agents and other agencies addresses exculpatory evidence explicitly, and imposes an ethical duty to follow up on evidentiary leads even when the prosecutor believes the resulting information may damage his or her case: Standard 3 - 5.4 Identification and Disclosure of Information and Evidence (a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted. (b) The prosecutor should diligently advise other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the prosecutor information described in (a) above. (^4) Available at https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEditi on.html (^5) Std. 3-1.1(b).
Few states have incorporated these standards into their local professional rules. Massachusetts and the District of Columbia have adopted language similar to Standard 3-5.4(g).^6 Illinois and Texas have adopted language similar to Standard 3-1.2(b).^7 NDAA National Prosecution Standards The National District Attorneys Association (“NDAA”) publishes its own standards for prosecutorial ethics. The NDAA standards are similarly not enforceable but are considered an aspirational supplement to state ethics rules.^8 Standard 2-8.4 states: The prosecutor shall make timely disclosure of exculpatory or mitigating evidence, as required by law and/or applicable rules of ethical conduct Though the NDAA standards are not as thorough as the ABA standards when it comes to exculpatory evidence, they similarly do not include a materiality requirement on their face. Rules of Professional Responsibility The most recent (2014 ed.) ABA model rule on the responsibilities of a prosecutor requires a prosecutor to make timely disclosures of any information that “tends to negate the guilt of the accused or mitigates the offense” and also contains provisions requiring prosecutors to act on post-conviction evidence of innocence.^9 The model rule imposes a duty to disclose and investigate new evidence of innocence and an additional duty to act to “remedy the conviction” where clear and convince evidence establishes a convicted party’s innocence. Rule 3.8 states: The prosecutor in a criminal case shall: […] (d) 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; […] (^6) S.J.C. Rule 3:07 RPC 3. 7 (^8) Introduction to National District Attorneys Association National Prosecution Standards Third Edition, available at https://www.ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.p df. (^9) Special Responsibilities of a Prosecutor, MRPC Rule 3.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.^10 Like the ABA Standards, the model rule is broader than Brady because it does not distinguish between material and non-material evidence.^11 Every state has adopted section (d) of the model rule or a similar standard.^12 The model rule’s imposition of an affirmative obligation to act on new exculpatory evidence is less popular. 19 states have adopted section (g), and only 13 of those states have also adopted section (h). Table 1 shows which jurisdictions have implemented which portions of the model rule. The text of the actual state rules, which largely track the model rule but have some differences, are provided in the Appendix. Table 1. Portions of the ABA Model Rule Adopted by States Professional conduct obligation to disclose exculpatory evidence (model rule (d)) Professional conduct obligation to act on new evidence of innocence (model rule (g)) Professional conduct obligation to respond to clear and convincing evidence of innocence (model rule (h)) Alabama X Alaska X X Arizona X X X Arkansas X California X X X Colorado X X X (^10) ABA MRPC 3. (^11) ABA Ethics Op. 09-454 (2009) (^12) Not every jurisdiction, however, has interpreted their rule similarly. See In re Kline , 113 A.3d 202, 210 (D.C. 2015) (comparing rulings from Louisiana, North Dakota, Wisconsin, Colorado, and Ohio).
District of Columbia
X
Criminal Procedure State criminal procedure rules vary wildly. A number of states have rules closely resembling the Federal Rules of Criminal Procedure, while some states, like Nevada, lack any statewide rules at all. Other states have robust criminal discovery. For the purposes of this memo, states can be sorted into three categories: those with a rule requiring the prosecutor to disclose exculpatory evidence automatically, those with a rule requiring the prosecutor to disclose exculpatory evidence in response to a defendant’s motion, and those without a rule addressing exculpatory evidence. In 24 states, criminal procedure rules require which require the prosecutor to automatically turn exculpatory information over to the defendant.^13 In 10 states, prosecutors are required to turn over exculpatory evidence upon motion or request of a defendant – a rule that effectively falls below the constitutional floor set by Brady , but may be helpful in helping parties resolve the timing of disclosure. In 16 states and the District of Columbia, there is no criminal procedure rule specifically addressing exculpatory evidence. Table 2 shows which states fall into each category. The text of the rules are provided in the Appendix. Table 2. Criminal Procedure Rules Addressing Exculpatory Evidence Criminal procedure requirement to provide exculpatory evidence on motion/request of defendant Criminal procedure obligation to provide exculpatory evidence automatically Alabama Alaska X Arizona X Arkansas X California X Colorado X Connecticut X Delaware Florida X (^13) Of these 24 states some, like Colorado, have language that tracks the ABA Standards and Model Rule: “The prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.” Others, like Louisiana, explicitly adopt the standards of Brady and its progeny.
Georgia Hawaii X Idaho X Illinois X Indiana Iowa Kansas Kentucky Louisiana X Maine X Maryland X Massachusetts X Michigan X Minnesota X Mississippi X Missouri X Montana X Nebraska X† Nevada New Hampshire X New Jersey X New Mexico X New York X North Carolina North Dakota Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island South Carolina South Dakota Tennessee Texas X Utah X Vermont X Virginia Washington X West Virginia X Wisconsin X Wyoming † (^) Criminal discovery limited to impeachment information about a jailhouse witness
has a model policy on Brady disclosure requirements, but the policy is only available to IAPC members. A number of state level organizations similarly have model policies that are behind paywalls or only available to members. Private entities that provide training materials, accreditation, and other services to police departments have also developed model policies. The Commission on Accreditation for Law Enforcement Agencies, Inc. (“CALEA”) and Lexipol are two such entities. State level professional organizations, such as the Arkansas Association of Chiefs of Police and the Florida Police Chiefs Association link to CALEA and Lexipol model policies, respectfully, on their websites.^20 While statutes criminalizing evidence tampering are ubiquitous, most states have left police departments to develop their own standards and procedures for dealing with exculpatory evidence and cooperating with prosecutors’ offices.^21 Connecticut, Illinois, and North Carolina are the only jurisdictions that have passed laws governing police conduct in this area. The relevant portions of the statutes are presented in Table 3. Table 3. Rules for Law Enforcement State Citation Relevant Provision Connecticut Conn. Gen. Stat. § 54-86c (c) Each peace officer, as defined in subdivision (9) of section 53a- 3 , shall disclose in writing any exculpatory information or material which he may have with respect to any criminal investigation to the prosecutorial official in charge of such case. Illinois 725 Ill. Comp. Stat. 5/114- 13 (b) Any public investigative, law enforcement, or other public agency responsible for investigating any homicide offense or participating in an investigation of any homicide offense, other than defense investigators, shall provide to the authority prosecuting the (^20) http://arkchiefs.org/resources/aacp-model-policies; https://fpca.com/law-enforcement-policies- and-training/ (^21) Evidence tampering statutes typically include a mens rea element that involves concealing or altering evidence for the purpose of affecting its usability in an investigation or trial. See, e.g ., Cal. Penal Code § 141. For a helpful discussion of the relationship between prosecutors’ offices and police, and a comparison to different model, see Stanley Z. Fisher, The Prosecutor's Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England, 68 Fordham L. Rev. 1379 (2000).
offense all investigative material, including but not limited to reports, memoranda, and field notes, that have been generated by or have come into the possession of the investigating agency concerning the homicide offense being investigated. In addition, the investigating agency shall provide to the prosecuting authority any material or information, including but not limited to reports, memoranda, and field notes, within its possession or control that would tend to negate the guilt of the accused of the offense charged or reduce his or her punishment for the homicide offense. Every investigative and law enforcement agency in this State shall adopt policies to ensure compliance with these standards. North Carolina N.C. Gen. Stat. § 15A- 501 Upon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law- enforcement officer: […] (6) Must make available to the State on a timely basis all materials and information acquired in the course of all felony investigations. This responsibility is a continuing affirmative duty. Summary Each state has adopted a rule of professional conduct requiring prosecutors to identify and disclose exculpatory evidence to the defendant in criminal proceedings. The ABA has interpreted its model rule to be more expansive than the constitutional requirements, and at least some states have done the same. A number of states have gone further and adopted the ABA Model Rule in its entirety or have developed criminal discovery rules that mandate disclosure of exculpatory information. California is the only state that has gone as far as criminalizing the intentional withholding of evidence the prosecutor knows to be material. Table 4 summarizes the sources discussed above.
Pennsylvania X X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X X Utah X X Vermont X X Virginia X Washington X X West Virginia X X Wisconsin X X Wyoming X District of Columbia
X
Appendix Alabama Rules of Professional Conduct Rule 3. Rules of Criminal Procedure Statute Other Alabama Rules of Professional Conduct: Rule 3.8 Special Responsibilities of a Prosecutor (1) The prosecutor in a criminal case shall: […] (d) Not willfully fail 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, 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 Alaska Rules of Professional Conduct Rule 3. Rules of Criminal Procedure Rule 16(b)(3) Statute Other Alaska Rules of Professional Conduct: Rule 3. The prosecutor in a criminal case shall: […] (d) 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; […]
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; […] (g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant's counsel or, if defendant is not represented, the defendant and the indigent defense appointing authority in the jurisdiction, and (2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable efforts to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take appropriate steps, including giving notice to the victim, to set aside the conviction. (i) A prosecutor who concludes in good faith that information is not subject to subsections (g) or (h) of this Rule does not violate those subsections even if this conclusion is later determined to have been erroneous. Arizona Rules of Criminal Procedure 15.1(b) (b) Supplemental disclosure. Except as provided in Rule 39(b), the State must make available to the defendant the following material and information within the State’s possession or control: […] (8) all existing material or information that tends to mitigate or negate the defendant's guilt or would tend to reduce the defendant's punishment. Arkansas Rules of Professional Conduct Rule 3. Rules of Criminal Procedure Rule 17.1(d) Statute Other Arkansas Rule of Professional Conduct 3.8(d) The prosecutor in a criminal case shall:
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(d) 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 Arkansas Rules of Criminal Procedure 17.1(d) (d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor. California Rules of Professional Conduct Rule 5- 110 Rules of Criminal Procedure Cal. Penal Code § 1054. Statute Cal. Penal Code § 141 Other California Rules of Professional Conduct Rule 5- 110 The prosecutor in a criminal case shall: [..] (D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal […] (F) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) Promptly disclose that evidence to an appropriate court or authority, and (2) If the conviction was obtained in the prosecutor’s jurisdiction, (a) Promptly disclose that evidence to the defendant unless a court authorizes delay, and (b) Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
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(g) When a prosecutor knows of new, credible and material evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time: (1) disclose that evidence to an appropriate court or prosecutorial authority, and (2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority (A) disclose the evidence to the defendant, and (B) if the defendant is not represented, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority, of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction. Rules of Criminal Procedure 16 (a) Prosecutor's Obligations. […] (2) The prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor. (3) The prosecuting attorney's obligations under this section (a) extend to material and information in the possession or control of members of his or her staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office. Connecticut Rules of Professional Conduct Rule 3. Rules of Criminal Procedure CPB § 40 - 11(b) Statute Other Connecticut Rules of Professional Conduct Rule 3. The prosecutor in a criminal case shall: (4) 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; and […] (6) When a prosecutor knows of new and credible evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall, unless a court authorizes delay: (A) if the conviction was obtained outside the prosecutor’s jurisdiction, promptly disclose that evidence to a court and an appropriate authority, and (B) if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant, and a court and an appropriate authority Connecticut Practice Book § 40 - 11 (b) In addition to the foregoing, the prosecuting authority shall disclose to the defendant, in accordance with any applicable constitutional and statutory provisions, any exculpatory information or materials that the prosecuting authority may have, whether or not a request has been made therefor Delaware Rules of Professional Conduct Rule 3.8(d) Rules of Criminal Procedure Statute Other Delaware Lawyers’ Rules of Professional Conduct Rule 3. (d)(1) 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; (2) when the prosecutor comes to know of new, credible and material evidence establishing that a convicted defendant did not commit the offense for which the defendant was convicted, the prosecutor shall, unless a court authorizes delay, make timely disclosure of that evidence to the convicted defendant and any appropriate court, or, where the conviction was obtained outside the prosecutor’s jurisdiction, to the chief prosecutor of the jurisdiction where the conviction occurred; Florida
