Thursday, August 29, 2019

Tennessee vacates ethics opinion, now holds that duty to disclose exculpatory evidence is not broader than the duty imposed by Brady v Maryland.

Long time readers of this blog might remember that I have posted a few times about the split among jurisdictions on whether Rule 3.8 imposes a duty on prosecutors to disclose exculpatory evidence that is broader than the duty imposed by the constitutional doctrine adopted by the Supreme Court in Brady v Maryland.  (See here, and here.)

For example, California, Washington DC and New York have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (see here and here).   Wisconsin, Ohio and Colorado, on the other hand, have held that both duties are the same.

Last year, the Tennessee Supreme Court's Board of Professional Responsibility issued an opinion holding that the duty under the Rule of Professional Conduct is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

Soon after the opinion was published, however, the Tennessee District Attorney's General Conference petitioned the state supreme court to vacate the ethics opinion, and the Court responded by doing so last week.

The Court held that Tennessee ethics opinion doesn’t impose a higher duty on state prosecutors to disclose evidence favorable to criminal defendants than the U.S. Supreme Court has said is necessary to provide due process because two inconsistent sets of rules would create conflict and confusion.

You can read the opinion here, or here.

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