Last week I read a story in the ABA Journal.com and I wonder what everyone thinks. Here are the facts, in a nutshell:
Prosecutor gives defense counsel a copy of a video that supports the
prosecution's case. Because of the video, Prosecutor has a strong case
against defendant. But later, somehow, Prosecutor loses the original of
the video and asks the judge to order defense
counsel to make a copy available to the prosecution so the prosecution
can use it against the defendant. Defense counsel did not want to
provide the video (presumably arguing it was not her job to help the
prosecution), and the judge replied counsel's conduct
violated "the spirit of" the rule that forbids a lawyer to “unlawfully
alter, destroy or conceal a document or other material having potential
I am not so sure about this. I think the spirit of that rule implies the
person withholding the information has a duty to disclose it and that the
other side does not know it exists.
What do you think? Should the judge grant the request? Does defense
counsel have an obligation to produce the video, thus helping the
prosecution build the case against his or her own client?
Here is the link to the story.