Sunday, April 12, 2015

DC Court finds that prosecutor's duty to disclose exculpatory evidence under Rules of Professional Conduct is broader than duty under Brady v Maryland

Back in 2012, I reported on a case from Washington DC called In re Kline in which the U.S. Justice Department and the D.C. Office of Bar Counsel argued for different interpretations of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule states that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This language originated in the ABA Model Rule which has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  (This was explained in ABA Formal Opinion 09-454).

However, not all jurisdictions agree with this interpretation.  I posted a note about this here, when the Wisconsin Supreme Court held in a disciplinary proceeding that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland

The proper interpretation of the rule in Washington DC was unclear because, although the text of the rule followed the language of the ABA Model Rule, the comment to the DC rule says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Almost a year after my first post on the case, in August 2013, I reported that the District of Columbia Board on Professional Responsibility recommended a 30 day suspension for the prosecutor in In re Kline.  You can see that post here.

The case is now back in the news because the DC Court of Appeals has reversed the sanctions while clarifying the extent of the duty to disclose exculpatory evidence under the Rules of Professional Conduct.

The court held that the prosecutor violated ethical obligations of disclosure under Rule 3.8, but that it was not unreasonable for the prosecutor to believe that he did not have a duty to disclose because of the confusion created by the discrepancy in the rule and its comment.  For that reason, the court reversed the sanction, but then proceeded to clarify the extent of the duty.  In doing so, the court joined what appears to be the prevalent interpretation of the duty. You can read the opinion here.

For more on this case, you can check out The Legal Profession blog, the White Collar Crime Prof blog, and The Legal Ethics Forum.

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