IN THE DISCIPLINARY DISTRICT IX

 

OFTHE
BOARD OF PROFESSIONAL 
OFTHE

SUPREME COURT OF TENNESSEE

 

IN RE: STEPHEN P. JONES, BPR #16764 DOCKET NO. 2016-2534-9-KH
Respondent, an Attorney Licensed
to Practice Law in Tennessee
(Shelby County)

 

RESPONSE AND MEMORANDUM
IN OPPOSITION TO SUMMARY JUDGMENT

 

Comes now the Board of Professional Responsibility (?Board?) to respond in opposition
to the Motion for Summary Judgment ?led by the Respondent, and respectfully requests that the
motion be denied in its entirety for the reasons set forth below.

STANDARD FOR SUMMARY JUDGMENT

As the moving party, Mr. Jones has the burden to af?rmatively negate an essential
element of the Board's claim or demonstrate that the Board's evidence at the summary judgment
stage is insuf?cient to establish its claim or defense. Rye 12. Women?s Care Ctr. of Memphis,
477 235, 264~65 (Tenn. 2015), cert. denied, 136 S. Ct. 2452 (2016)

In response, the Board must demonstrate .. the existence of speci?c facts in the record
which could lead a rational trier of fact to ?nd in favor of the nonmoving party.? Id. The Board
has responded to each fact presented by Mr. Jones in the manner provided by Tenn. R. Civ. P. 56
by: 1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3)

producing additional evidence establishing the existence of a genuine issue for the trial; or (4)

submitting an af?davit explaining the necessity for further discovery pursuant to Tenn. R. Civ.
P., Rule 56.06.? Boyce v. LPP Mortgage Ltd, 435 758, 763?64 (Tenn. Ct. App. 2013),
citing Martin v. Norfolk Southern Railway. Co., 271 76, 84 (Tenn.2008) (citations
omitted).

STATEMENT OF FACTS

Mr. Jones became involved as co?counsel to another prosecutor in the Shelby County
District Attorney?s of?ce in the lead up to the February 2009 trial of the Noura Jackson case.
Mr. Jones was not the lead prosecutor handling the trial. The trial lasted for two weeks and the
State called more than 45 witnesses and introduced more than 300 exhibits at trial. One of the
State?s more than 45 witnesses in the Noura Jackson case was Andrew Hammack. (See Board?s
Response to SUMF 1?4)

Mr. Hammack provided two formal statements to the police regarding his interactions
with Ms. Jackson during the night of June 4, 2005, and the early morning of June 5, 2005 the
time period for which it was alleged that Ms. Jackson?s mother was murdered. Mr. Hammack
provided a third statement, which was the handwritten statement at issue in this case. On June
13, 2005, Detective Miller collected Mr. Hammack, interviewed him at the police station, and
received the handwritten statement prepared by Mr. Hammack. The third statement provided
details on Mr. Hammack?s whereabouts, the location of his cell phone, and possible impairment
from drug use. (See Board?s Response to SUMF Appendix, Part 1 - July 17, 2009 transcript
of hearing on Motion for New Trial, pp. 53, 55; Amended Answer to Petition for Discipline,

Exhibit 1, Attachments A and Amended Answer to Petition for Discipline, para l6)

According to Detective Miller?s testimony, he added Hammack?s handwritten statement
to the police ?le after receiving it. (Appendix, Part 2 July 17, 2009 transcript of hearing on
Motion for New Trial, pp. 5 8?59)

Immediately following the formal charges and initiation of the prosecution against Noura
Jackson, the defense began discovery efforts. In 2005, the defense ?led motions for discovery.
In 2007, the defense ?led a comprehensive motion to compel which included a request related to
Mr. Hammack. Multiple pre?trial hearings were held on defense counsel?s motions to compel
Brady material. The prosecution was well aware that the defense had been requesting such
statements for years. Although Mr. Jones did not join the prosecution until January 2009, he has
testi?ed that he received a copy of the ?le and began familiarizing himself with it before January .
l, 2009. Mr. Jones was also responsible for ?providing discovery that has not already been
provided? which he accomplished by going page by page through the trial notebook and asking
co-counsel if the information had previously been provided. On January 31, 2009 and February
9, 2009, Mr. Jones informed the Court that there was no other exculpatory material or encks
material that needed to be provided. At that same hearing, Mr. Jones and the Court engaged in a
discussion about the kind of information that the prosecution would be required to produce. This
demonstrates that Mr. Jones had knowledge and notice prior to receiving a copy of the Hammack
statement that a newly discovered witness statement would need deliberate and thoughtful
review by the prosecution as to whether it should be produced immediately. (See Board?s
Response to SUMF Appendix, Part 3 Jones? deposition, pp. 29, 77, 85; Appendix, Part 4 
Excerpt from Pretrial Hearing held January 21, 2009, pp. 19, 37-40; Appendix Part 5 Motion

for Discovery; Appendix Part 6 Motion to Compel Discovery; Appendix Part 7 Motion for

Exculpatory Evidence; Appendix Part 8 Af?davit of Valerie Corder; Amended Answer to
Petition for Discipline, para 13?14)

Mr. Jones admits that the prosecution provided encks material to the defense before the
trial began. He also admits that the June 13, 2005 summary of Detective Mark Miller, the one
which references the third Hammack statement, was provided by the prosecution to the defense
prior to trial. (See Board?s Response to SUMF 

Mr. Jones was responsible for the examination of Detective Miller at trial. As Mr. Jones
prepared for Detective Miller?s testimony during a break in the trial, he reviewed the June 13,
2005 summary by Detective Miller. According to Mr. Jones, that is when he noticed a reference
to the third statement by Mr. Hammack. (See SUMF 6)

It is at this point that Mr. Jones engaged in several actions and inactions that were
intentional, knowing, and which resulted in the failure of Mr. Jones to produce the statement.
Mr. Jones requested and received a copy of Hammack?s third statement from law enforcement
prior to the examination of both Detective Miller and Mr. Hammack. Mr. Jones was responsible
for the direct examination of Detective Miller. His co-counsel was responsible for the direct
examination of Mr. Hammack. He gave the statement a cursory review and then placed it into a
?trial notebook.? The ?trial notebook? was a master ?le that neither he nor his co?counsel were
using. According to Mr. Jones, he and his co-counsel were ?working out of our own files.?
From his cursory review, he decided that the statement did not need to be delivered to the
defense. Mr. Jones did not give a copy to his co-counsel, either before or after Hammack?s
testimony. Mr. Jones could have discussed it with co-counsel, but he thought the statement was
a ?non-issue? and not material. During Mr. Hammack?s testimony, both prosecution and defense

asked questions about the statements he gave to the police. Mr. Jones testi?ed that he could not

remember whether those examination questions about statements given to the police reminded
him of the third statement that he placed in the trial notebook. Further, Mr. Jones was
responsible for giving the ?rst part of the prosecution?s closing statement. As the trial came to
an end, Mr. Jones was focused on ?the most important job? of closing argument and assembling
the ?puzzle pieces? of testimony and evidence. In closing argument, Mr. Jones relies on the texts
and phone calls made by the defendant to Mr. Hammack, and Mr. Hammack?s trial testimony, to
show that the defendant ?needed a cover up.? (See Board?s Response to SUMF #12: Appendix
Part 3, Jones? deposition, pp. 92, 95-98, 110-101, 104?107, 112-113, 116; Appendix Part 9,
Testimony of Hammack; Appendix Part 10, Testimony of Detective Miller; Appendix Part
11, Jones? Closing Argument, pp. 21?22, 30; also see Board?s Response to SUMF 6:
Appendix, Part 3 Jones? Deposition, p. 93?94; Amended Answer to Petition for Discipline,
Exhibit 1)

After Mr. Hammack testi?ed on direct examination at trial, the prosecution did not give
the defense a copy of the third statement. The defense did not make a formal motion for the
statement under Tenn. R. Crim. P. 26.2; however, defense counsel and the prosecution engaged
in an informal process for requesting Jencks material as each witness testi?ed. After the
conclusion of the trial, Mr. Jones ?led ?State?s Notice of Omitted encks Statement In Relation
to the Testimony of Andrew Hammack? alerting the defense and Court that the statement had
been improperly omitted. In the Notice of Omitted encks Statement ?led by Mr. Jones, he
states that the prosecution voluntarily produced all Jencks statements ?then in its possession?
trial, which demonstrates that the prosecution was not relying on formal motions. (See
Board?s Response to SUMF Appendix, Part 8 Af?davit of Valerie Corder; Amended

Answer to Petition for Discipline, Exhibit 1)

As stated above, Mr. Jones ?led a ?State?s Notice of Omitted Jencks Statement In
Relation to the Testimony of Andrew Hammack? after the trial to explain the error. In the
hearing on the Motion for New Trial, Judge Craft stated that the document was not intentionally
withheld from the defense and was not a Brady violation. However, Judge Craft did state the
following: ?nd it wasn?t proper for the state to forget it. It was not proper for the state
not to turn it over, but it was unintentional.? (See Board?s Response to SUMF #14: Appendix 
Part 12, July 17, 2009 transcript of hearing on Motion for New Trial, p. 108)

On appeal, the Court of Criminal Appeals af?rmed the trial court?s ruling likewise
?nding no B_ra_dy violation had occurred. However, the Court of Criminal Appeals, like the trial
court, held that is clear that the defendant?s requests for discovery included the third
statement of Hammack, and the trial court found that, at the least, the statement should have
been provided following his testimony. Additionally, the court found that the State?s failure to
timely provide the statement was an inadvertent mistake. Certainly, the statement should have
been provided.? (State Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App.,
Dec. 10, 2012) (emphasis added)

The Tennessee Supreme Court determined that both lower courts were in error, ?nding
that a Brady violation requiring reversal of Ms. Jackson?s conviction occurred as a result of the
untimely disclosure of the third Hammack statement. State v. Jackson, 444 554 (Tenn.
2014) The Tennessee Supreme Court explained its differing conclusion as to Brady on the basis
that there were a number of ways that counsel for Ms. Jackson could have used the contents of
Mr. Hammack?s third statement to challenge the State?s case during trial. Id. at 596.

In a footnote, the Tennessee Supreme Court declined to ?nd the third statement was

intentionally withheld:

By our holding we do not disturb the trial court's ?nding that the
prosecutor did not intentionally withhold Mr. Hammack's third statement.
We observe, however, that this is not the ?rst time prosecutors in the
Thirtieth Judicial District have withheld evidence that should have been
disclosed. See, State v. Coleman, No. 
2002 WL 31625009, at 9 (Tenn.Crim.App. Nov. 7, 2002) (stating that the
prosecution offered an ?untimely revelation? of an oral statement
defendant made to the police, resulting in a thirty-day continuance); Roe v.
State, No. 2002 WL 31624850, at 11
(Tenn.Crim.App. Nov. 20, 2002) (stating that the prosecution improperly
withheld information favorable to the defendant, although no Brady
violation resulted as the information was not material).

State v. Jackson, 444 554, 597 (Tenn. 2014)
However, the Court?s opinion also makes clear that the prosecution was on notice that the
defense was seeking any statements made by Hammack:

The record in this appeal demonstrates that Defendant satis?ed the ?rst
requirement of a Brady claim by requesting, on March 9 and March 23,
2007, any statements Mr. Hammack had provided to the State.
Defendant identi?ed Mr. Hammack as the suspect from whom the police
had taken ?ngerprints and a DNA sample. In two pre?trial hearings, the
defense sought to compel the prosecution to produce evidence related
to Mr. Hammack, including statements to the police, which were
speci?cally referenced. At least four pre?trial hearings were held on
defense motions to compel production of Brady materials in general. The
defense renewed its request for Brady materials at trial. Thus, the record
clearly demonstrates that the defense requested Brady materials and
speci?cally requested any statements Mr. Hammack had given to the
police.

Id. at 594. (emphasis added) The Court also makes it clear that the third Hammack statement
was in the possession of the prosecution:

Second, the record also shows that Mr. Hammack's third statement was in
the prosecution's possession. Mr. Hammack gave the statement to the
police on June 13, 2005, long before Defendant's trial. Although the
prosecution apparently did not obtain a copy of the statement from the
police until midway through Defendant?s trial, the Brady duty of
disclosure applies even to evidence in police possession which is not
turned over to the prosecution. Kyles, 514 US. at 438, 115 1555;
Johnson, 38 at 56. The record is thus undisputed that, for purposes
of Brady, the prosecution had Mr. Hammack's third statement in its

possession from June 13, 2005, and actually had the statement in its
physical possession before Mr. Hammack testi?ed, but did not
provide the statement to the defense. Defendant has therefore
established the second element of her Brady claim.

Id. (emphasis added)

At every level of this case, the courts determined that it was improper for the prosecution
to withhold the third Hammack statement. Although only the Tennessee Supreme Court held
that the error was suf?cient enough for a new trial, no court absolved the prosecution from the
error. (Appendix 4 Part 12, July 17, 2009 transcript of hearing on Motion for New Trial, p. 108;
State v. Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App, Dec. 10, 2012); State
12. Jackson, 444 554 (Tenn. 2014))

ARGUMENT

As a prosecutor, Mr. Jones is subject to a great deal of responsibility. He is accountable
to the State, the public, victims of crimes, the accused, and the criminal justice system. While
prosecutors are subject to all of the Rules of Professional Conduct, the Rules of Professional
Conduct impose upon prosecutors a special responsibility through the requirements of
RFC 3.8.

Throughout this case, Mr. Jones has asserted that his actions and inaction with respect to
the third Hammack statement were inadvertent and a mistake. This assertion seeks to minimize
all of the surrounding circumstances related to his handling of the third statement. This was not
simply one mistake. It was a series of intentional and knowing decisions, and some negligence,
that contributed to the waste of judicial resources and injury to the defendant.

This disciplinary proceeding is the appropriate venue to review all of the facts concerning

Mr. Jones? actions and apply them to the Rules of Professional Conduct, as contemplated by

Tenn. Sup. Ct. R. 9. It is the Board of Professional Responsibility, and this hearing panel, who

have the authority to make ?ndings, conclusions, and impose disciplinary sanctions:
Any attorney admitted to practice law in this State, including any formerly
admitted attorney with respect to acts committed prior to surrender of a
law license, suspension, disbarment, or transfer to inactive status, or with
respect to acts subsequent thereto which amount to the practice of law or
constitute a Violation of this Rule or of the Rules of Professional Conduct,
and any attorney specially admitted by a court of this State for a particular
proceeding, is subject to the disciplinary jurisdiction of the Court, the
Board, panels, the district committees and hearing panels herein
established, and the circuit and Chancery courts of this State.

Tenn. Sup. Ct. R. 9, 8.

1. The Facts Demonstrate That Mr. Jones Violated RPC 

When Mr. Jones joined the prosecution team in or around January 2009, the case had
been pending for approximately four (4) years. Throughout that period of time, the defense
pressed an aggressive campaign seeking material held by the prosecution that was discoverable
pursuant to applicable rules of criminal procedure or exculpatory under the Brady doctrine. At
several points, the defense speci?cally referred to information related to Mr. Hammack and,
more generally, to witness statements. This historical context is important because it illustrates
that the technical record was replete with these types of requests from the defense to the
prosecution and (2) the arguments related to Brady or Jencks material immediately preceding the
trial, and during the trial, were going to be an obvious point of contention.

After joining the case, Mr. Jones was responsible for producing exculpatory and
discoverable material to the defense. Mr. Jones has testi?ed that he received a copy of the ?le
and began familiarizing himself with it before January 1, 2009. Mr. Jones was also responsible

for ?providing discovery that has not already been provided? which he accomplished by going

page by page through the trial notebook and asking co-counsel if the information had previously

been provided. On January 31, 2009 and February 9, 2009, Mr. Jones informed the Court that
there was no other exculpatory material or encks material that needed to be provided. At that
same hearing, Mr. Jones and the Court engaged in a discussion about the kind of information that
the prosecution would be required to produce. Mr. Jones had knowledge and notice prior to
receiving a copy of the third statement by Hammack that a newly discovered witness statement
would need deliberate and thoughtful review by the prosecution as to Whether it should be
produced immediately.

On or around February 15, 2009, Mr. Jones began his preparation for the testimony of
Detective Miller, a State?s witness. Upon reading Detective Miller's June 13, 2005 summary,
Mr. Jones noticed reference to a statement by Mr. Hammack that had not been produced
(referred to as the ?third statement?). Notably, the prosecution had given the defense a copy of
Detective Miller's summary before trial and, it must be assumed, Mr. Jones did not notice the
reference in any review of materials at that time. Mr. Jones asked a police of?cer to retrieve a
copy of the third statement.

It is at this point that Mr. Jones began a series of actions and inaction that ultimately
contributed to years of appeals and reversal of the conviction. First, Mr. Jones conducted a
cursory review of the third statement and decided that it did not need to be shared with the
defense. Second, Mr. Jones placed the third statement in the trial notebook that neither he nor
his co?counsel were actively working from. Third, he does not discuss his discovery of the third
statement with co-counsel to either alert her to its location, to discuss whether or not it needed to
be produced to defense, or whether it already had been produced at some earlier time. Fourth, as

the trial moves ferward and Detective Miller testi?es about Hammack's ?statements,? ones

10

does not produce the document. Fifth, after Mr. Hammack testi?es about the statements he made
to police, Mr. Jones does not produce the document.

Sixth, as Mr. Jones prepares and delivers a strong closing argument which references the
defendant's attempts to contact Mr. Hammack on the night of the murder, he does not produce
the document. This was a complicated trial for the prosecution with many witnesses, exhibits,
and circumstantial evidence. It is evident from Mr. Jones? closing argument that the prosecution
sought to use Mr. Hammack's testimony to show that the defendant was trying to establish cover
for her whereabouts. Therefore, inconsistencies in Mr. Hammack's statements to the police, and
the information that he was ?rolling on were material facts that the defense could have
used to impeach or to challenge Hammack's own alibi. It is for these reasons that Mr. onesr
initial decision that the third statement was a ?non-issue? demonstrates a pattern of knowing
behavior.

It is notable that Mr. Jones implores this hearing panel to disregard the Tennessee
Supreme Court?s unanimous holding that a Brady violation occurred, yet insists that the footnote
declining to disturb the trial court?s ?nding of inadvertence is of great value. Nevertheless, the
Board can agree with one part of Mr. Jones? rationale: the ethical duty of RPC 3.8(d) does differ
from Brady in some respects.

RPC titled ?Special Responsibilities of a Prosecutor,? states:

The prosecutor in a criminal matter:

shall make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of I
the accused or mitigates the offense, and, in connection with sentencing,
shall disclose to the defense and, if the defendant is proceeding pro se, 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; (emphasis added)

11

Tenn. Sup. Ct. R. 8, RPC 3.8(d) (effective March 1, 2003)

RPC 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

6

investigation. . .Rule 3.8(d) does not implicitly include the materiality limitation recognized in
the constitutional case law. The rule requires prosecutors to disclose favorable evidence so that
the defense can decide on its utility.? (See Exhibit A, ABA Op. 09-454, p. 2) Although
Tennessee has little, if any, precedent interpreting RPC most analysis ?nds that the
ethical obligation is more demanding than the constitutional obligation because ?it requires the
disclosure of evidence or information favorable to the defense without regard to the anticipated
impact of the evidence or information on a trial?s outcome.? (See Exhibit A, ABA Op. 09?454,
p. 5) (See also Cone v. Bell, 556 US. 449, n. 15 (2009) noting that ?[A]lthough the Due Process
Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of
material evidence, the obligation to disclose evidence favorable to the defense may arise more
broadly under a prosecutor's ethical or statutory obligations.? (internal citations omitted))

Next, Mr. Jones argues that the hearing panel must ?nd that only ?intentional? behavior
will suffice to support a violation of RPC The Board submits that this approach is
unnecessary because the rule is clear and unambiguous. Further, this approach would shelter
prosecutors from all but the most severe, and likely impossible to prove, misconduct. Non-
prosecutors are not protected from attorney discipline when they commit negligence with respect
to trust accounts, confidential information, con?icts, discovery violations, etc. Interestingly,

Mr. Jones characterizes his conduct as an ?unintentional discovery violation in a criminal

proceeding.? (Memorandum at Law in Support of Motion for Summary Judgment, p. 10) As the

12

Board?s summary of facts demonstrates, there were multiple pre?trial discovery requests and
hearings on the subject of witness statements and exculpatory material. Mr. Jones failed to act
precipitously to provide a newly discovered witness statement despite the defense?s prior
reasonable requests for discovery. This is grounds for ?nding a violation under RPC 3.4(d)
whether one is a prosecutor or not.

Mr. Jones correctly assumes that the Board advocates the approach followed in the
following examples from other states. In In Re: Jordan, a prosecutor failed to provide a second
witness statement because he did not believe that it contained exculpatory evidence and did not
have to be provided pursuant to Brady v. Maryland, 373 US. 83 (1963). In re Jordan, 913 So.
2d 775, 780 (La. 2005) The hearing committee, in a split decision, found there was no violation
of RPC 3.8(d) because while the prosecutor was in possession of the statement and failed to
disclose the second statement to the defense, the prosecutor reasonably believed the statement
was inculpatory rather than exculpatory. Id. The Disciplinary Board disagreed, in part. The
Board found that the conduct was enough to show a violation of RFC however, there
were enough mitigating circumstances to avoid a sanction. The Louisiana Supreme Court
disagreed with the Board?s decision to impose no discipline and entered a suspended period of
suspension. In Re: Jordan is distinguishable from Respondent?s case in several ways; however,
the case demonstrates that a prosecutor will violate RPC 3.8(d) for ?knowing? behavior. The
prosecutor may have had a reasonable belief that the witness statement was not subject to Brady.
Nevertheless, ?[T]he actions, or inactions in this case, of the prosecutor are paramount to a fair
administration of justice; and the people of this state must have con?dence in a prosecutor's
integrity in performing his duty to disclose exculpatory evidence in order for the system to be

just.? Id. at 781.

13

In 2012, the Supreme Court of North Dakota held that a prosecutor?s negligent failure to
disclose an exculpatory memorandum to the defense in an underlying criminal prosecution prior
to trial violated RPC In re Disciplinary Action Against Feland, 820 672 (ND.
2012) The Court reviewed the same Colorado case used by Respondent in this motion, as well
as the Louisiana case cited by the Board above:

The only case cited by the parties that provides signi?cant analysis of the
issue is In re Attorney C, 47 P.3d 1167 (Colo. 2002). In Attorney C,
disciplinary proceedings were commenced against a prosecutor who had
on two occasions withheld exculpatory evidence from the defense until
after the preliminary hearings were completed. A hearing board concluded
the first violation had been committed negligently and the second violation
had been committed knowingly. Id. at 1173. The Colorado Supreme
Court, after ?rst concluding the exculpatory evidence should have been
disclosed before the preliminary hearings had been held, addressed
whether Rule 3.8(d) applies only when a prosecutor intentionally fails to
disclose evidence. The court noted that discovery violations in criminal
cases are routinely handled by trial courts through appropriate orders and
sanctions, and the court did not ?wish to upset that process nor to interject
regulatory counsel into it.? Attorney C, at 1174.

By contrast, the court in In re Jordan, 913 So.2d 775, 783 (La. 2005),
concluded Rule 3.8(d) does not incorporate a mental element and could be
violated by conduct that was not intentional. Noting that its rule outlining
proper factors to consider in imposing discipline allowed the court to
consider whether the conduct had been committed intentionally,
knowingly, or negligently, the court found the prosecutor had
?knowingly? withheld exculpatory evidence in violation of Rule 
which warranted a deferred three-month suspension. Jordan, at 784; see
also Lawyer Disciplinary Bd. 12. Hotelier, 199 227, 483 810,
818 (1997) (although not directly addressing whether there is an intent
requirement under Rule the court noted that a prosecutor who
?knowingly? fails to disclose all exculpatory evidence ?runs the risk of
violating  Rule Hans P. Sinha, The Discipline of Prosecutors:
Should Intent Be a Requirement?, 10 Engage: J. Federalist Soc'y Prac.
Groups 102, 103?04 (2009) (noting the lack of an intent requirement in
Rule 3.8(d) and discussing the conflicting results in Attorney and Jordan


Id. The Supreme Court of North Dakota also recognized that not all rules of professional

conduct contain a mental state:

14

Rule 3.8(d) is not ambiguous. It clearly provides a prosecutor ?shall 

disclose to the defense at the earliest practical time all evidence or

information known to the prosecutor that tends to negate the guilt of the

accused or mitigates the offense.? The drafters did not limit its application

only to intentional violations. Furthermore, the drafters of the Rules of

Professional Conduct demonstrated they knew how to include a speci?c

mens rea if one was intended. See N.D.R. Prof. Conduct 3.3(a) and 

Rule 3.8(d) creates an af?rmative duty upon a prosecutor to disclose all

known exculpatory materials, and the plain language of the rule does not

create an exception for unintentional violations.
Id. at 680. The Court concluded that negligent conduct would also be violative of RFC 
?Rather, we believe adequate protection of the public, particularly those persons accused of a
crime, requires that prosecutors not only refrain from intentionally withholding exculpatory
evidence but that they conform their conduct so they do not knowingly or negligently withhold
such evidence.? Id.

If the hearing panel determines that Mr. Jones violated RPC they must turn to the
ABA Standards for Imposing Lawyer Sanctions to apply the discipline, which requires an
analysis of the following: (1) What ethical duty did the lawyer violate? (2) What was the
lawyer?s mental state? (Did the lawyer act intentionally, knowingly, or negligently?) (3) What
was the extent of the actual or potential injury caused by the lawyer?s misconduct? and, (4) Are
there any aggravating or mitigating circumstances? ABA Standards, Theoretical Framework
This is the appropriate point at which to consider ?mental state.? The Board submits that

the facts support a finding that Mr. Jones acted in a ?knowing? manner. The ABA Standards
de?ne ?knowledge? as ?the conscious awareness of the nature or attendant circumstances of the
conduct but without the conscious objective or purpose to accomplish a particular result.? ABA
Standards, De?nitions Mr. Jones incorrectly argues that there are no facts demonstrating that he

was consciously aware of ?creating the circumstances that would result in an untimely

disclosure.? (Memorandum of Law in Support of Motion for Summary Judgment, p. 9) The

15

correct analysis is whether he had the conscious awareness of the nature and attendant
circumstances of the conduct but without the conscious purpose to accomplish the result.
Simply put, he did. He was aware of the statement. He was aware that he made a decision not to
produce it to the defense. He was aware of putting it in the trial notebook. The Board does not
have to show that his purpose was to withhold the statement from the defense until after the trial.

For these reasons, Mr. Jones has failed to demonstrate that he is entitled to summary
judgment with respect to RPC He cannot negate an essential element of the Board's
claim or demonstrate that the Board?s evidence at the summary judgment stage is insuf?cient to
establish its claim.

2. The Facts Demonstrate That Mr. Jones Violated RPC 

In the Board's Response to the Statement of Undisputed Material Facts, there are several
facts the hearing panel should consider in relation to this allegation of misconduct. First, Mr.
Jones obviously does not dispute that the third statement should have been produced at trial
because he ?led a ?State?s Notice of Omitted Jencks Statement in Relation to the Testimony of
Andrew Hammack? alerting the defense and Court that the statement had been improperly
omitted. Tenn. R. Crim. P. 26 is the encks? rule. ?The language of Rule 26.2 is similar to the
language in Rule 26.2 of the Federal Rules of Criminal Procedure.? Tenn. R. Crim. P. 26.2 
1437, 95th Cong, 1st Sess. (1977), would place in the criminal rules the substance of what is
now 18 U.S.C. 3500 (the Jencks Act).? Fed. R. Crim. P. 26.2

Second, before the trial began, Mr. Jones informed the trial court that all encks statement
had been provided to the defense. In the State?s Notice of Omitted encks Statement in Relation
to the Testimony of Andrew Hammack ?led by Mr. Jones, he acknowledges that the prosecution

voluntarily produced all Jencks statements ?then in its possession? before trial, which

16

demonstrates that the prosecution was not relying on formal motions. Finally, defense counsel
and the prosecution engaged in an informal process for requesting encks material as each
witness testified.

Mr. Jones knowingly disobeyed this obligation when he decided to treat the third
statement as he had every other piece of encks material. He had already assured the trial court
that the prosecution met its obligation to turn over witness statements as required by Rule 26 and
encks, but he failed to ensure that the prosecution continued to meet its obligation.

For these reasons, Mr. Jones has failed to demonstrate that he is entitled to summary
judgment with respect to RPC He cannot negate an essential element of the Board?s claim
or demonstrate that the Board's evidence at the summary judgment stage is insufficient to
establish its claim.

3. The Facts Demonstrate That Mr. Jones Violated RPC 8.4(a) and 

With respect to RPCs 8.4(a) and the Board relies on all of the same factual
allegations addressed throughout this response. Further, Mr. Jones has admitted in his
memorandum that RPC 8.4(d) is intended to apply to conduct directly related to judicial
proceedings. (Memorandum in Support of Motion for Summary Judgment, p. 16) The Board
agrees. It will be incumbent upon the hearing panel to determine whether Mr. Jones? action, or
inaction, adversely affected the administration of justice. The Board submits that the factual
allegations discussed herein provide a suf?cient basis for the hearing panel to conclude that Mr.
Jones? actions, committed in the context of a judicial proceeding, adversely affected the
administration of justice. Mr. Jones incorrectly argues that the Board must prove a certain
mental state with respect to RPC 8.4. If the facts show that Mr. ones' conduct was prejudicial

to the administration of justice, it is a violation. Mr. ones' mental state is a factor only when the

17

hearing panel is applying the ABA Standards for Imposing Lawyer Sanctions. Further, there is
no requirement that RPC 8.4(d) be coupled with another violation, although it often is.
The following case from Mississippi provides an instructive analysis of 8.4(a) and 

Rule 8.4 provides that it is professional misconduct for an attorney to
?violate or attempt to violate the rules of professional conduct 
Attorneys in Mississippi have a professional obligation to obey the Rules
of Professional Conduct of the State. Guidance as to how an attorney is to
go about meeting this obligation can be found in scope of the Miss. R.
Prof. Conduct, which states that [s]ome of the Rules are imperatives, cast
in the terms ?shall? or ?shall not.? These de?ne proper conduct for
purposes of professional discipline. Others, generally cast in the term
?may,? are permissive and de?ne areas under the Rules in which the
lawyer has professional discretion. No disciplinary action should be taken
when the lawyer chooses not to act or acts within the bounds of such
discretion. Although Rule 8.4 does not contain the ?shall not? language, it
is prohibitory nonetheless. Rule 8.4 indicates that certain actions constitute
professional misconduct regardless of the fact that they do not lend
themselves to greater speci?city. Rule in particular, prohibits the
Violation or the attempted violation of any of the Miss. R. Prof. Conduct.
It is clear that Rogers would violate Rule 8.4(a) by failing to carry out
those actions which the Rules under which he was charged denote as
?shalls? or by undertaking to do those things which the Rules designate as
?shall not's? or constituting professional misconduct. Therefore, upon
?nding that Rogers violated or attempted to violate Rules 8.4(c) or as
charged, it must also be found that he violated 

Rogers v. Mississippi Bar, 731 So. 2d 1158, 1166 (Miss. 1999) Tennessee has similar guidance
in its Scope to the Rules of Professional Conduct:

The Rules of Professional Conduct are rules of reason. They should be
interpreted with reference to the purposes of legal representation and of
the law itself. Some of the Rules are imperatives, cast in the terms ?shall?
or ?shall not.? These de?ne proper conduct for purposes of professional
discipline. Others, generally cast in the term ?may,? are permissive and
de?ne areas under the Rules in which the lawyer has discretion to exercise
professional judgment. No disciplinary action should be taken when the
lawyer chooses not to act or acts within the bounds of such discretion.
Other Rules de?ne the nature of relationships between the lawyer and
others. The Rules are thus partly obligatory and disciplinary and partly
constitutive and descriptive in that they de?ne a lawyer's professional role.
Many of the Comments use the term ?should.? Comments do not add

18

obligations to the Rules but provide guidance for practicing in compliance
with the Rules.

TN CT Rule 8, Preamble Scope

The Board objects to any consideration of the defendant?s Alford plea as a material fact in
this case. As re?ected in her attorney's af?davit, the defendant was facing years of trials,
appeals, and incarceration if she continued to ?ght for her innocence. The myriad of reasons for
her decision to enter a plea are not relevant to deliberation of Mr. Jones? misconduct. Likewise,
Judge Craft?s declaration and opinion on whether or not Mr. Jones committed a violation of the
Rules of Professional Conduct is irrelevant. It is the duty and power of this hearing panel to
adjudicate violations of the Rules of Professional Conduct. Respectfully, Judge Craft?s duty was
to rule on matters of criminal procedure and apply applicable doctrines of criminal law.

For these reasons, Mr. Jones has failed to demonstrate that he is entitled to summary
judgment with respect to RPC 8.4(a) and He cannot negate an essential element of the
Board's claim or demonstrate that the Board's evidence at the summary judgment stage is
insuf?cient to establish its claim.

4. The Hearing Panel Is Not Precluded From Concluding That Mr. Jones Violated The
Rules Of Professional Conduct.

Mr. Jones has provided no authority for the inexplicable theory that the hearing panel is
precluded from making its own determination, as provided in Tenn. Sup. Ct. R. 9, of disciplinary
misconduct.1 He cannot assert res judicata, because the doctrine of res judicata "bars a second
suit between the same parties or their privies on the same cause of action with respect to all
issues which were or could have been litigated in the former suit." Colin v. Bd. of Prof]

Responsibility, 151 473, 486 (Tenn. 2004), quoting Richardson 1). Tennessee Bd. of

 

1 The fact that Mr. Jones continues to equate a constitutional violation with the Board's clerical error is also

inexplicable, although it is indicative of his repeated efforts to minimize his own misconduct.

19

Dentistry, 913 446, 459 (Tenn. 1995) and Goeke v. Woods, 777 347, 349 (Tenn.
1989)). The doctrine does not apply here because the Board was not a party.

Mr. Jones has implied on more than one occasion that ?nine judges? found nothing
unethical in his conduct. Actually, every court reviewing this case admonished the prosecution,
and therefore Mr. Jones, by ?nding that the third statement should have been provided to the
defense.

Judge Craft made the following statements in the hearing on Motion for New Trial: ?1
find it wasn?t proper for the state to forget it. It was not proper for the state not to turn it
over, but it was unintentional.? (Appendix Part 12, July 17, 2009 transcript of hearing on
Motion for New Trial, p. 108)

The Court of Criminal Appeals, like the trial court, held that is clear that the
defendant?s requests for discovery included the third statement of Hammack, and the trial
court found that, at the least, the statement should have been provided following his
testimony. Additionally, the court found that the State?s failure to timely provide the statement
was an inadvertent mistake. Certainly, the statement should have been provided.? (State 
Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App., Dec. 10, 2012) (emphasis
added))

The Tennessee Supreme Court reversed and remanded the case as a result of Mr. ones?
misconduct. The Tennessee Supreme Court explained its conclusion as to Brady violations on
the basis that there were a number of ways that counsel for Ms. Jackson could have used the
contents of Mr. Hammack?s third statement to challenge the State?s case during trial. In a
footnote, the Court declined to disturb the trial court's initial finding that the prosecution did not

intentionally withhold the statement:

20

By our holding we do not disturb the trial court's ?nding that the
prosecutor did not intentionally withhold Mr. Hammack's third statement.
We observe, however, that this is not the ?rst time prosecutors in the
Thirtieth Judicial District have withheld evidence that should have been
disclosed. See, e. State v. Coleman, No. 
2002 WL 31625009, at 9 (Tenn.Crim.App. Nov. 7, 2002) (stating that the
prosecution offered an ?untimely revelation? of an oral statement
defendant made to the police, resulting in a thirty-day continuance); Roe v.
State, No. 2002 WL 31624850, at 11
(Tenn.Crim.App. Nov. 20, 2002) (stating that the prosecution improperly
withheld information favorable to the defendant, although no Brady
Violation resulted as the information was not material).

State v. Jackson, 444 554, 597 (Tenn. 2014)
Notwithstanding that footnote, the Board submits that the unanimous opinion serves as
con?rmation that the prosecution, meaning Mr. Jones, is responsible for the error:

The record in this appeal demonstrates that Defendant satis?ed the ?rst
requirement of a Brady claim by requesting, on March 9 and March 23,
2007, any statements Mr. Hammack had provided to the State.
Defendant identi?ed Mr. Hammack as the suspect from whom the police
had taken ?ngerprints and a DNA sample. In two pre-trial hearings, the
defense sought to compel the prosecution to produce evidence related
to Mr. Hammack, including statements to the police, which were
speci?cally referenced. At least four pre?trial hearings were held on
defense motions to compel production of Brady materials in general. The
defense renewed its request for Brady materials at trial. Thus, the record
clearly demonstrates that the defense requested Brady materials and
speci?cally requested any statements Mr. Hammack had given to the
police.

Id. at 594. (emphasis added) The Court also makes it clear that the third Hammack statement
was in the possession of the prosecution:

Second, the record also shows that Mr. Hammack's third statement was in
the prosecution's possession. Mr. Hammack gave the statement to the
police on June 13, 2005, long before Defendant's trial. Although the
prosecution apparently did not obtain a copy of the statement from the
police until midway through Defendant's trial, the Brady duty of
disclosure applies even to evidence in police possession which is not
turned over to the prosecution. Kyles, 514 US. at 438, 115 1555;
Johnson, 38 at 56. The record is thus undisputed that, for purposes
of Brady, the prosecution had Mr. Hammack's third statement in its

21

possession from June 13, 2005, and actually had the statement in its
physical possession before Mr. Hammack testi?ed, but did not
provide the statement to the defense. Defendant has therefore
established the second element of her Brady claim.

Id. (emphasis added)

Finally, Mr. ones' contempt for the complainant and for the Board's recommendation to
impose a disciplinary sanction is misplaced. He is surely aware that the Tennessee Supreme
Court has invested the Board with the authority to investigate complaints of disciplinary
misconduct, whatever the source or on the Board?s own initiative. Tenn. Sup. Ct. R. 9, 4.5
and 15.1. Complainants may have personal motivations for ?ling a complaint. They may have
little knowledge of the disciplinary process or the Rules of Professional Conduct. The process,
however, is designed for independent review by Disciplinary Counsel, the Board, District
Committee Members, Hearing Panels, and the Court itself. As explained in the Flowers v. Bel of
Professional ReSponsibility case, neither the ?ling of a complaint nor the motivation of the
person making the complaint undermines the Board?s authority to investigate and conclude that a

violation of the Rules of Professional Conduct has occurred:

In other words, the ?ling of a complaint does not, as suggested by Mr.
Flowers, equate with a ?nding that an attorney has committed misconduct.
Rather, upon receiving a complaint, Disciplinary Counsel conducts an
investigation and determines the appropriate course of action. If, as in this
case, Disciplinary Counsel determines that a formal hearing is appropriate
and that recommendation is accepted by the Board of Professional
Responsibility, the matter is then heard by a hearing panel. The hearing
panel makes its own independent determination as to whether the attorney
engaged in misconduct. The hearing panel's decision is then appealable to
the courts.

The motivations of Mr. lowers?s clients, whatever they may have been, to
?le disciplinary complaints against him does not render these complaints
frivolous and certainly does not nullify or undermine the ?ndings of the
hearing panel and the trial court.

Flowers v. Bd. ofProf'l Responsibility, 314 882, 893 (Tenn. 2010)

22

In summary, if the ?ling of a complaint does not equate with a ?nding that the attorney
has committed misconduct, the lack of a complaint by any particular individual or court does not
equate with a ?nding that there has been misconduct. In either situation, it is incumbent upon
the Board and/or a Hearing Panel to make the determination of ethical misconduct.

CONCLUSION
The Board?s response demonstrates that a dispute exists with respect to the facts and to

the proper interpretation of those facts. For the reasons stated above, the Motion for Summary

Judgment should be denied in its entirety.

 

Respectfully submitted,

Krisggmodges BPR #17086 

Tennessee Board of Professional Responsibility
Deputy Chief Disciplinary Counsel

10 Cadillac Drive, Suite 220

Brentwood, Tennessee 37027

(615) 361-7500

CERTIFICATE OF SERVICE

I certify that a copy of the Board?s Response and Memorandum in Opposition to
Summary Judgment has been served upon counsel for Respondent, Brian S. Faughnan, Esq, by
regular US. Mail at Lewis, Thomason, King, Krieg Waldrop, One Commerce Square, 40
South Main Street, 29thl Floor, Memphis, TN 38103, and by e-mail
faughnanb@thomasonlaw.corn on this the 19th day of August, 2016.

Kasaym?I?tadges, No.?017086
Deputy Chief Disciplinary Counse
Board of Professional Responsibility

to

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Source: ABA Ethics Opinions ABA Formal Ethics Opinions Formal Opinion 09-454 July 8, 2009

Formal Opinion 09-454
July 8, 2009

Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense

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 of?ce must take reasonable steps under Rule 5.1 to ensure that all
Ia wyers in the of?ce comply with their disclosure obligation.

There are various sources of prosecutors' obligations to disclose evidence and other information to

defendants in a criminal prosecution. 1 Prosecutors are governed by federal constitutional provisions as
interpreted by the US. Supreme Court and by other courts of competent jurisdiction. Prosecutors also have
discovery obligations establish ed by statute, procedure rules, court rules or court orders, and are subject to
discipline for violating these obligations.

 

1 This opinion is based on the Model Rules of Professional Conduct as amended by the ABA
House of Delegates through August 2009. The laws, court rules, regulations, rules of
professional conduct, and opinions promulgated in individual jurisdictions are controlling.

 

Prosecutors have a separate disclosure obligation under Rule 3.8(d) of the Model Rules of Professional
Conduct, which provides: ?The prosecutor in a criminal case shall  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.? This obligation may overlap with a prosecutor's other
legal obligations.

Rule 3.8(d) sometimes has been described as codifying the Supreme Court's landmark decision in Brady v.

Maryland, 2 which held that criminal defendants have a due process right to receive favorable information

from the prosecution. 3 This inaccurate description may lead to the incorrect assumption that the rule
requires no more from a prosecutor than compliance with the constitutional and other legal obligations of
disclosure, which frequently are discussed by the courts in litigation. Yet despite the importance of
prosecutors fully understanding the extent of the separate obligations imposed by Rule few judicial
opinions, or state or local ethics opinions, provide guidance in interpreting the various state analogs to the

rule. 4 Moreover, although courts in criminal litigation frequently discuss the scope of prosecutors' legal
obligations, they rarely address the scope of the ethics rule. 5 Finally, although courts sometimes sanction

prosecutors for violating disclosure obligations, 6 disciplinary authorities rarely proceed against prosecutors
in cases that raise interpretive questions under Rule and therefore disciplinary case law als 
little assistance.

   
 

 

 

Exhibit A

 
 

2 373 vs. 83 (1963). See State v. York, 632 P.2d 1261, 1267 (Or. 1981) (Tanzer, J.



4/8/2016 Lawyers' Manual on Professional Conduct

concurring) (observing parenthetically that the predecessor to Rule DR 
?merely codifies? Brady).

3 Brady, 373 U.S. at 87 (?the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the see also
Kyles v. Whitley, 514 U.S. 419, 432 (1995) (?The prosecution's affirmative duty to disclose
evidence favorable to a defendant can trace its origins to early 20th-century strictures
against misrepresentation and is of course most prominently associated with this Court's
decision in Brady v. Maryland.?)

4 See Arizona State Bar, Comm. on Rules of Prof'l Conduct, Op. 2001-03 (2001); Arizona
State Bar, Comm. on Rules of Prof'l Conduct, Op. 940? (1994); State Bar of Wisconsin,
Comm. on Prof?l Ethics, Op. [586-7 (1986).

5 See, Mastracchio v. Vose, 2000 WL 303307 *13 (D.R.I. 2000), aff'd, 274 F.3d 590 (lst
Cir. 2001) (prosecution's failure to disclose nonmaterial information about witness did not
violate defendant's Fourteenth Amendment rights, but came ?exceedineg close to violating
[Rule 

6 See, In re Jordan, 913 So. 2d 775, 782 (La. 2005) (prosecutor's failure to disclose
witness statement that negated ability to positively identify defendant in lineup violated state
Rule N.C. State Bar v. Michael B. Nifong, No. 06 DHC 35, Amended Findings of Fact,
Conclusions of Law, and Order of Discipline (Disciplinary Hearing Comm'n of N.C. July 24,
2007) (prosecutor withheld critical DNA test results from defense); Office of Disciplinary
Counsel v. Wrenn, 790 1195, 1198 (Ohio 2003) (prosecutor failed to disclose at
pretrial hearing results of DNA tests in child sexual abuse case that were favorable to
defendant and fact that that Victim had changed his story); In re Grant, 541 540, 540
(SC. 2001) (prosecutor failed to fully disclose exculpatory material and impeachment
evidence regarding statements given by state's key witness in murder prosecution). Cf. Rule
3.8, cmt. prosecutor's independentjudgment, made in good faith, that the new
evidence is not of such nature as to trigger the obligations of sections (9) and though
subsequently determined to have been erroneous, does not constitute a violation of this
Rule.")

 

The Committee undertakes its exploration by examining the following hypothetical.

A grand jury has charged a defendant in a multi?count indictment based on allegations that the
defendant assaulted a woman and stole her purse. The victim and one bystander, both of whom
were previously unacquainted with the defendant, identified him in a photo array and then picked
him out of a line?up. Before deciding to bring charges, the prosecutor learned from the police that
two other eyewitnesses viewed the same line?up but stated that they did not see the perpetrator,
and that a confidential informant attributed the assault to someone else. The prosecutor
interviewed the other two eyewitnesses and concluded that they did not get a good enough look at
the perpetrator to testify reliably. In addition, he interviewed the confidential informant and
concluded that he is not credible.

Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify
the defendant and that an informant implicated someone other than the defendant? If so, when must the
prosecutor disclose this information? Would the defendant's consent to the prosecutor's noncompliance
with the ethical duty eliminate the prosecutor's disclosure obligation?

The Scope of the'Pretrial Disclosure Obligation

A threshold question is whether the disclosure obligation under Rule 3.8(d) is more extensive than the
constitutional obligation of disclosure. A prosecutor's constitutional obligation extends only to favorable

information that is ?material,? evidence and information likely to lead to an acquittal. 7 In the
hypothetical, information known to the prosecutor would be favorable to the defense but is not necessarily

material under the constitutional case law. 8 The following review of the rule's background and history
indicates that Rule 3.8(d) does not implicitly include the materiality limitation recognized in the
constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can
decide on its utility.

 

7 See, Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Kyles, 514 U.S. at 432-35,
United States v. Bagley, 473 U.S. 667, 674-75 (1985).

8 ?[Petitioner] must convince us that ?there is a reasonable probability? that the result of the

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trial would have been different if the suppressed documents had been disclosed to the
[T]he materiality inquiry is notjust a matter of determining whether, after
discounting the inculpatory evidence in light of the undisclosed evidence, the remaining
evidence is sufficient to support the jury's conclusions. Rather, the question is whether ?the
favorable evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.? Strickler, 527 U.S. at 290 (citations omitted); see
also United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (?The result of the progression
from Brady to Agurs and Bag/ey is that the nature of the prosecutor's constitutional duty to
disclose has shifted from an evidentiary test of materiality that can be applied rather
easily to any item of evidence (would this evidence have some tendency to undermine proof
of guilt?) to a resultnaffecting test that obliges a prosecutor to make a prediction as to
whether a reasonable probability will exist that the outcome would have been different if
disclosure had been made?)

 

Courts recognize that lawyers who serve as public prosecutors have special obligations as representatives
?not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not

that it shall win a case, but that justice shall be done.? 9 Similarly, Comment to Model Rule 3.8 states
that: prosecutor has the responsibility of a minister ofjustice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that
guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and
to rectify the conviction of innocent persons.?

 

9 Berger v. United States, 295 U.S. 78, 88 (1935) (discussing role of U.S. Attorney).
References in U.S. judicial decisions to the prosecutor's obligation to seek justice date back
more than 150 years. See, Rush v. Cavanaugh, 2 Pa. 187, 1845 WL 5210 *2 (Pa. 1845)
(the prosecutor ?is expressly bound by his official oath to behave himself in his office of
attorney with all due fidelity to the court as well as the client; and he violates it when he
consciously presses for an unjustjudgment: much more so when he presses for the
conviction of an innocent man.?)

 

In 1908, more than a half-century prior to the Supreme Court's decision in Brady v. Maryland, 10 the ABA
Canons of Professional Ethics recognized that the prosecutor?s duty to see that justice is done included an

obligation not to suppress facts capable of establishing the innocence of the accused. 11 This obligation was
carried over into the ABA Model Code of Professional Responsibility, adopted in 1969, and expanded. DR 7-
103(8) provided: public prosecutor shall make timely disclosure to counsel for the defendant, or to the
defendant if he has no counsel, of the existence of evidence, known to the prosecutor  that tends to
negate the guilt of the accused, mitigate the degree of the offense, or reduce the punish ment.? The ABA
adopted the rule against the background of the Supreme Court's 1963 decision in Brady v. Maryland, but
most understood that the rule did not simply codify existing constitutional law but imposed a more

demanding disclosure obligation. 12

 

10 Prior to Brady, prosecutors' disclosure obligations were well?established in federal
proceedings but had not yet been extended under the Due Process Clause to state court
proceedings. See, Jencks v. United States, 353 U.S. 657, 668, n. 13 (1957), citing
Canon 5 of the American Bar Association Canons of Professional Ethics (1947), for the
proposition that the interest of the United States in a criminal prosecution ?is not that it shall
win a case, but thatjustice shall be done;? United States v. Andolschek, 142 F.2d 503, 506
(2d Cir. 1944) (L. Hand, J.) (?While we must accept it as lawful for a department of the
government to suppress documents  we cannot agree that this should include their
suppression in a criminal prosecution, founded upon those very dealings to which the
documents relate and whose criminality they will, or may, tend to exculpate.?)

11 ABA Canons of Professional Ethics, Canon 5 (1908) (?The primary duty of a lawyer
engaged in public prosecution is not to convict, but to see thatjustice is done. The
suppression of facts or the secreting of witnesses capable of establishing the innocence of
the accused is highly reprehensible?)

12 See, Olavi Maru, Annotated Code of Professional Responsibility 330 (American Bar
Found., 1979) disparity exists between the prosecutor's disclosure duty as a matter of
law and the prosecutor's duty as a matter of ethics?). For example, Brady required disclosure
only upon request from the defense?a limitation that was not incorporated into the language
of DR see Maru, id. at 330?and that was eventually eliminated by the Supreme
Court itself. Moreover, in United States v. Agurs, 427 U.S. 97 (1976), an opinion post-dating
the adoption of DR the Court held that due process is not violated unless a court

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finds after the trial that evidence withheld by the prosecutor was material, in the sense that it
would have established a reasonable doubt. Experts understood that under DR a
prosecutor could be disciplined for withholding favorable evidence even if the evidence did
not appear likely to affect the verdict. Maru, id.

 

Over the course of more than 45 years following Brady, the Supreme Court and lower courts issued many
decisions regarding the scope of prosecutors' disclosure obligations under the Due Process Clause. The
decisions establish a constitutional minimum but do not purport to preclude jurisdictions from adopting
more demanding disclosure obligations by statute, rule of procedure, or rule of professional conduct.

The drafters of Rule in turn, made no attempt to codify the evolving constitutional case law. Rather,
the ABA Model Rules, adopted in 1983, carried over DR into Rule 3.8(d) without substantial
modification. The accompanying Comments recognize that the duty of candor established by Rule 3.8(d)
arises out of the prosecutor's obligation ?to see that the defendant is accorded procedural justice, that guilt

is decided upon the basis of sufficient evidence,? 13 and most importantly, ?that special precautions are

taken to prevent  the conviction of innocent persons.? 14 A prosecutor's timely disclosure of evidence and
information that tends to negate the guilt of the accused or mitigate the offense promotes the public
interest in the fair and reliable resolution of criminal prosecutions. The premise of adversarial proceedings is
that the truth will emerge when each side presents the testimony, other evidence and arguments most
favorable to its position. In criminal proceedings, where the defense ordinarily has limited access to
evidence, the prosecutor's disclosure of evidence and information favorable to the defense promotes the
proper functioning of the adversarial process, thereby reducing the risk of false convictions.

 

13 Rule 3.8, cmt. 
14 Id.

 

Unlike Model Rules that expressly incorporate a legal standard, Rule 3.8(d) 15 establishes an independent
one. Courts as well as commentators have recognized that the ethical obligation is more demanding than

the constitutional obligation. 16 The ABA Standards for Criminal Justice likewise acknowledge that
prosecutors' ethical duty of disclosure extends beyond the constitutional obligation. 17

 

15 For example, Rule 3.4(a) makes it unethical for a lawyer to ?unlawfully obstruct another
party?s access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value? (emphasis added), Rule 3.4(b) makes it
unethical for a lawyer to ?offer an inducement to a witness that is prohibited by law?
(emphasis added), and Rule 3.4(c) forbids knowingly disobeying ?an obligation under the
rules of a These provisions incorporate other law as defining the scope of an
obligation. Their function is not to establish an independent standard but to enable courts to
discipline lawyers who violate certain laws and to remind lawyers of certain legal obligations.
If the drafters of the Model Rules had intended only to incorporate other law as the predicate
for Rule that Rule, too, would have provided that lawyers comply with their disclosure
obligations under the law.

16 This is particularly true insofar as the constitutional cases, but not the ethics rule,
establish an after-the-fact, outcome?determinative ?materiality? test. See Cone v. Bell, 129
S. Ct. 1769, 1783 n. 15 (2009) (?Although the Due Process Clause of the Fourteenth
Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the
obligation to disclose evidence favorable to the defense may arise more broadly under a
prosecutor's ethical or statutory obligations?), citing inter alia, Rule Kyles, 514 U.S.
at 436 (observing that Brady ?requires less of the prosecution than? Rule Annotated
Model Rules of Professional Conduct 375 (ABA 2007); 2 Geoffrey C. Hazard, Jr., W. William
Hodes, The Law of Lawyering ?34-6 (3d 2001 Supp. 2009) (?The professional ethical duty
is considerably broader than the constitutional duty announced in Brady v. Maryland  and its
progeny?); Peter A. Joy Kevin C. McMunigal, Do No Wrong: Ethics for Prosecutors and
Defenders 145 (ABA 2009).

17 The current version provides: prosecutor shall not intentionally fail to make timely
disclosure to the defense, at the earliest feasible opportunity, of all evidence which tends to
negate the guilt of the accused or mitigate the offense charged or which would tend to
reduce the punishment of the accused.? ABA Standards for Criminal Justice, Prosecution
Function, Standard (ABA 3d ed. 1993), available at
The accompanying
Commentary observes: ?This obligation, which is virtually identical to that imposed by ABA

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model ethics codes, goes beyond the corollary duty imposed upon prosecutors by
constitutional law.? Id. at 96. The original version, approved in February 1971, drawing on
DR of the Model Code, provided: ?It is unprofessional conduct for a prosecutor to
fail to make timely disclosure to the defense of the existence of evidence, known to him,
supporting the innocence of the defendant. He should disclose evidence which would tend to
negate the guilt of the accused or mitigate the degree of the offense or reduce the
punishment at the earliest feasibie opportunity.?

 

In particular, Rule 3.8(d) is more demanding than the constitutional case law, 18 in that it requires the
disclosure of evidence or information favorable to the defense 19 without regard to the anticipated impact of
the evidence or information on a trial?s outcome. 20 The rule thereby requires prosecutors to steer clear of
the constitutional line, erring on the side of caution. 21

 

18 See, United States v. Jones, 609 F. Supp.2d 113, 118-19 (0. Mass. 2009); United
States v. Acosta, 357 F. Supp.2d 1228, 1232-33 (D. Nev. 2005). We are aware of only two
jurisdictions where courts have determined that prosecutors are not subject to discipline
under Rule 3.8(d) for withholding favorable evidence that is not material under the Brady
line of cases. See In re Attorney C, 47 P.3d 1167 (Colo. 2002) (en banc) (court deferred to
disciplinary board finding that prosecutor did not intentionally withhold evidence); D.C. Rule
Prof'l Conduct 3.8, cmt. 1 (?[Rule 3.8] 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?)

19 Although this opinion focuses on the duty to disclose evidence and information that tends
to negate the guilt of an accused, the principles it sets forth regarding such matters as
knowledge and timing apply equally to evidence and information that ?mitigates the offense.?
Evidence or information mitigates the offense if it tends to show that the defendant's level of
culpability is less serious than charged. For example, evidence that the defendant in a
homicide case was provoked by the victim might mitigate the offense by supporting an
argument that the defendant is guilty of manslaughter but not murder.

20 Consequently, a court?s determination in post-trial proceedings that evidence withheld by
the prosecution was not material is not equivalent to a determination that evidence or
information did not have to be disclosed under Rule See, U.S. v. Barraza .
Cazares, 465 F.3d 327, 333?34 (8th Cir. 2006) (finding that drug buyer's statement that he
did not know the defendant, who accompanied seller during the transaction, was favorable to
defense but not material). 

21 Cf. Cone v. Bell, 129 S. Ct. at 1783 n. 15 (?As we have often observed, the prudent
prosecutor will err on the side of transparency, resolving doubtful questions in favor of
disclosure?); Kyles, 514 U.S. at 439 (prosecutors should avoid ?tacking too close to the
wind?). In some jurisdictions, court rules and court orders serve a similar purpose. See, 
Local Rules of the US. Dist. Court for the Dist. of Mass., Rule (defining
?exculpatory information,? for purposes of the prosecutor's pretrial disclosure obligations
under the Local Rules, to include (among other things) ?all information that is material and
favorable to the accused because it tends to [c]ast doubt on defendant's guilt as to any
essential element in any count in the indictment or information; [c]ast doubt on the
admissibility of evidence that the government anticipates offering in its case-in?chief, that
might be subject to a motion to suppress or exclude, which would, if allowed, be appealable
 [or] [c]ast doubt on the credibility or accuracy of any evidence that the government
anticipates offering in its 

 

Under Rule evidence or information ordinarily will tend to negate the guilt of the accused if it would

be relevant or useful to establishing a defense or negating the prosecution's proof. 22 Evidence and
information subject to the rule includes both that which tends to exculpate the accused when viewed
independently and that which tends to be exculpatory when viewed in light of other evidence or information
known to the prosecutor.

 

22 Notably, the disclosure standard endorsed by the National District Attorneys' Association,
like that of Rule omits the constitutional standard's materiality limitation. National
District Attorneys' Association, National Prosecution Standards ?53.5 (2d ed. 1991) (?The
prosecutor should disclose to the defense any material or information within his actual
knowledge and within his possession which tends to negate or reduce the guilt of the
defendant pertaining to the offense charged"). The ABA Standards Relating to the
Administration of Criminal Justice, The Prosecution Function (3d ed. 1992), never has
included such a limitation either.

 

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Further, this ethical duty of disclosure is not limited to admissible ?evidence,? such as physical and
documentary evidence, and transcripts of favorable testimony; it also requires disclosure of favorable
?information.? Though possibly inadmissible itself, favorable information may lead a defendant's lawyer to

admissible testimony or other evidence 23 or assist him in other ways, such as in plea negotiations. In
determining whether evidence and information will tend to negate the guiit of the accused, the prosecutor
must consider not only defenses to the charges that the defendant or defense counsel has expressed an
intention to raise but also any other legally cognizable defenses. Nothing in the rule suggests a de minimis
exception to the prosecutor's disclosure duty where, for example, the prosecutor believes that the
information has only a minimal tendency to negate the defendant?s guilt, or that the favorable evidence is
highly unreliable.

 

23 For example an anonymous tip that a specific individual other than the defendant
committed the crime charged would be inadmissible under hearsay rules but would enable
the defense to explore the possible guilt of the alternative suspect. Likewise, disclosure of a
favorable out?of?court statement that is not admissible in itself might enable the defense to
call the speaker as a witness to present the information in admissible form. As these
examples suggest, disclosure must be full enough to enable the defense to conduct an
effective investigation. It would not be sufficient to disclose that someone else was
implicated without identifying who, or to disclose that a speaker exculpated the defendant
without identifying the speaker.

 

In the hypothetical, supra, where two eyewitnesses said that the defendant was not the assailant and an
informant identified someone other than the defendant as the assailant, that information would tend to
negate the defendant's guilt regardless of the strength of the remaining evidence and even if the
prosecutor is not personally persuaded that the testimony is reliable or credible. Although the prosecutor
may believe that the witnesses simply failed to get a good enough look at the assailant to make an
accurate identification, the defense might present the witnesses' testimony and argue why the jury should
consider it exculpatory. Similarly, the fact that the informant has prior convictions or is generally regarded
as untrustworthy by the police would not excuse the prosecutor from his duty to disclose the informant's
favorable information. The defense might argue to the jury that the testimony establishes reasonable
doubt. The rule requires prosecutors to give the defense the opportunity to decide whether the evidence
can be put to effective use.

The Knowledge Requirement

Rule 3.8(d) requires disclosure only of evidence and information ?known to the prosecutor.? Knowledge
means ?actual knowledge,? which ?may be inferred from [the] circumstances.? 24 Although ?a lawyer

cannot ignore the obvious,? 25 Rule 3.8(d) does not establish a duty to undertake an investigation in search
of exculpatory evidence.

 

24 Rule 

25 Rule 1.13, cmt. cf. ABA Formal Opinion 95?396 knowledge may be inferred
from the circumstances. It follows, therefore, that a lawyer may not avoid [knowledge of a
fact] simply by closing her eyes to the see also ABA Standards for Criminal
Justice, Prosecution Function, Standard (3d ed. 1993) prosecutor should not
intentionally avoid pursuit of evidence because he or she believes it will damage the
prosecution's case or aid the 

 

The knowledge requirement thus limits what might otherwise appear to be an obligation substantially more
onerous than prosecutors? legal obligations under other law. Although the rule requires prosecutors to

disclose known evidence and information that is favorable to the accused, 26 it does not require prosecutors
to conduct searches or investigations for favorable evidence that may possibly exist but of which they are
unaware. For example, prior to a guilty plea, to enable the defendant to make a well?advised plea at the
time of arraignment, a prosecutor must disclose known evidence and information that would be relevant or
useful to establishing a defense or negating the prosecution's proof. If the prosecutor has not yet reviewed
voluminous files or obtained all police files, however, Rule 3.8 does not require the prosecutor to review or
request such files unless the prosecutor actually knows or infers from the circumstances, or it is obvious,
that the files contain favorable evidence or information. In the hypothetical, for example, the prosecutor
would have to disclose that two eyewitnesses failed to identify the defendant as the assailant and that an

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informant attributed the assault to someone else, because the prosecutor knew that information from
communications with the police. Rule 3.8(d) ordinarily would not require the prosecutor to conduct further
inquiry or investigation to discover other evidence or information favorable to the defense unless he was

closing his eyes to the existence of such evidence or information. 27

 

'26 If the prosecutor knows of the existence of evidence or information relevant to a criminal
prosecution, the prosecutor must disclose it if, viewed objectively, it would tend to negate
the defendant's guilt. However, a prosecutor's erroneous judgment that the evidence was not
favorable to the defense should not constitute a violation of the ruie if the prosecutor's
judgment'was made in good faith. Cf. Rule 3.8, cmt. 

27 Other law may require prosecutors to make efforts to seek and review information not
then known to them. Moreover, Rules 1.1 and 1.3 require prosecutors to exercise
competence and diligence, which would encompass complying with discovery obligations
established by constitutional law, statutes, and court rules, and may require prosecutors to
seek evidence and information not then within their knowledge and possession.

 

The Requirement of Timely Disclosure

In general, for the disclosure of information to be timely, it must be made early enough that the

information can be used effectively. 28 Because the defense can use favorable evidence and information
most fully and effectively the sooner it is received, such evidence or information, once known to the
prosecutor, must be disclosed under Rule 3.8(d) as soon as reasonably practical.

 

28 Compare D.C. Rule Prof'l Conduct 3.8(d) (explicitly requiring that disclosure be made ?at
a time when use by the defense is reasonably feasible"); N'orth Dakota Rule Prof'l Conduct
3.8(d) (requiring disclosure ?at the earliest practical time?); ABA Standards for Criminal
Justice, Prosecution Function, supra note 17 (calling for disclosure ?at the earliest feasible
opportunity?).

 

Evidence and information disclosed under Rule 3.8(d) may be used for various purposes prior to trial, for
example, conducting a defense investigation, deciding whether to raise an affirmative defense, or
determining defense strategy in general. The obligation of timely disclosure of favorable evidence and
information requires disclosure to be made sufficiently in advance of these and similar actions and decisions
that the defense can effectively use the evidence and information. Among the most signi?cant purposes for
which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant

regarding whether to plead guilty. 29 Because the defendant's decision may be strongly influenced by

defense counsel's evaluation of the strength of the prosecution's case, 30 timely disclosure requires the
prosecutor to disclose evidence and information covered by Rule 3.8(d) prior to a guilty plea proceeding,

which may occur concurrently with the defendant?s arraignment. 31 Defendants first decide whether to
plead guilty when they are arraigned on criminal charges, and if they plead not guilty initially, they may
enter a guilty plea later. Where early disclosure, or disclosure of too much information, may undermine an
ongoing investigation or jeopardize a witness, as may be the case when an informant's identity would be

revealed, the prosecutor may seek a protective order. 32

 

29 See ABA Model Rules of Professional Conduct 1.2(a) and 

30 In some state and local jurisdictions, primarily as a matter of discretion, prosecutors
provide ?open file? discovery to defense counsel?that is, they provide access to all the
documents in their case file including incriminating information?t0 facilitate the counseling
and decision-making process. In North Carolina, there is a statutory requirement of open-file
discovery. See N.C. GEN. STAT. (2007); see generally Robert P. Mosteller,
Exculpatory Evidence, Ethics, and the Disbarment of Mike Nifong: The Critical Importance of
Full Open?File Discovery, 15 Geo. Mason L. Rev. 257 (2008).

31 See Joy McMunigal, supra note 16 at 145 (?the language of the rule, in particular its
requirement of ?timely disclosure,? certainly appears to mandate that prosecutors disclose
favorable material during plea negotiations, if not sooner").

32 Rule 3.8, Comment 

 

Defendant's Acceptance of Prosecutor's Nondisclosure

The question may arise whether a defendant's consent to the prosecutor's noncompliance with the
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disclosure obligation under Rule 3.8(d) obviates the prosecutor's duty to comply. 33 For example, may the
prosecutor and defendant agree that, as a condition of receiving leniency, the defendant will forgo evidence
and information that would otherwise be provided? The answer is A defendant's consent does not
absolve a prosecutor of the duty imposed by Rule and therefore a prosecutor may not solicit, accept
or rely on the defendant's consent.

 

33 It appears to be an unresolved question whether, as a condition of a favorable plea
agreement, a prosecutor may require a defendant entirely to waive the right under Brady to
receive favorable evidence. In United States v. Ruiz, 536 U.S. 622, 628?32 (2002), the Court
held that a plea agreement could require a defendant to forgo the right recognized in Giglio
v. United States, 405 U.S. 150 (1972), to evidence that could be used to impeach critical
witnesses. The Court reasoned that is particularly difficult to characterize impeachment
information as critical information of which the defendant must always be aware prior to
pleading guilty given the random way in which such information may, or may not, help a
particular defendant.? 536 U.S. at 630. In any event, even if courts were to hold that the
right to favorable evidence may be entirely waived for constitutional purposes, the ethical
obligations established by Rule 3.8(d) are not coextensive with the prosecutor's constitutional
duties of disclosure, as already discussed.

 

In general, a third party may not effectively absolve a lawyer of the duty to comply with his Model Rules
obligations; exceptions to this principle are provided only in the Model Rules that specifically authorize

particular lawyer conduct conditioned on consent of a client 34 or another. 35 Rule 3.8(d) is designed not
only for the defendant's protection, but also to promote the pu blic?s interest in the fairness and reliability of
the criminal justice system, which requires that defendants be able to make informed decisions. Allowing a
prosecutor to avoid compliance based on the defendant's consent might undermine a defense lawyer's

ability to advise the defendant on whether to plead guilty, 36 with the result that some defendants
(including perhaps factually innocent defendants) would make improvident decisions. On the other hand,
where the prosecution's purpose in seeking forbearance from the ethical duty of disclosure serves a
legitimate and overriding purpose, for example, the prevention of witness tampering, the prosecution may

obtain a protective order to limit what must be disclosed. 37

 

34 See, Rules and Even then, it is often the case
that protections afforded by the ethics rules can be relinquished only up to a point, because
the relevant interests are not exclusively those of the party who is willing to forgo the rule's
protection. See, Rule 

35 See, Rule 3.8(d) (authorizing prosecutor to withhold favorable evidence and
information pursuant to judicial protective order); Rule 4.2 (permitting communications with
represented person with consent of that person's lawyer or pursuant to court order).

36 See Rules 1.2(a) and 

37 The prosecution also might seek an agreement from the defense to return, and maintain
the confidentiaiity of evidence and information it receives.

 

The Disclosure Obligation in Connection with Sentencing

The obligation to disclose to the defense and to the tribunal, in connection with sentencing, all unprivileged
mitigating information known to the prosecutor differs in several respects from the obligation of disclosure
that apply before a guilty plea or trial.

First, the nature of the information to be disclosed is different. The duty to disclose mitigating information
refers to information that might lead to a more lenient sentence. Such information may be of various kinds,
information that suggests that the defendant?s level of involvement in a conSpiracy was less than the
charges indicate, or that the defendant committed the offense in response to pressure from a co-defendant
or other third party (not as a justification but reducing his morai blameworthiness).

Second, the rule requires disclosure to the tribunal as well as to the defense. Mitigating information may
already have been put before the court at a trial, but not necessarily when the defendant has pled guilty.
When an agency prepares a pre-sentence report prior to sentencing, the prosecutor may provide mitigating
information to the relevant agency rather than to the tribunal directly, because that ensures disclosure to
the tribunal.

Third, disclosure of information that would only mitigate a sentence need not be provided before or during

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the trial but only, as the rule states, ?in connection with sentencing,? after a guilty plea or verdict. To
be timely, however, disclosure must be made sufficiently in advance of the sentencing for the defense
effectively to use it and for the tribunal fully to consider it.

Fourth, whereas prior to trial, a protective order of the court would be required for a prosecutor to withhold
favorable but privileged information, Rule 3.8(d) expressly permits the prosecutor to withhold privileged

information in connection with sentencing. 38

 

38 The drafters apparently concluded that the interest in confidentiality protected by an
applicable privilege generally outweighs a defendant's interest in receiving mitigating
evidence in connection with a sentencing, but does not generally outweigh a defendant's
interest in receiving favorable evidence or information at the pretrial or trial stage. The
privilege exception does not apply, however, when the prosecution must prove particular
facts in a sentencing hearing in order to establish the severity of the sentence. This is true in
federal criminal cases, for example, when the prosecution must prove aggravating factors in
order to justify an enhanced sentence. Such adversarial, fact-finding proceedings are
equivalent to a trial, so the duty to disclose favorable evidence and information is fully
applicable, without regard to whether the evidence or information is privileged.

 

The Obligations of Supervisors and Other Prosecutors Who Are Not Personally
Responsible for a Criminal Prosecution

Any supervisory lawyer in the prosecutor's office and those lawyers with managerial responsibility are
obligated to ensure that subordinate lawyers comply with all their legal and ethical obligations. 39 Thus,
supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under
their direct supervision meet their ethical obligations of disclosure, 40 and are subject to discipline for

ordering, ratifying or knowingly failing to correct discovery violations. 41 To promote compliance with Rule
3.8(d) in particular, supervisory lawyers must ensure that subordinate prosecutors are adequately trained
regarding this obligation. Internal office procedures must facilitate such compliance.

 

39 Rules 5.1(a) and 
40 Rule 
41 Rule See, In re Myers, 584 357, 360 2003).

 

For example, when responsibility for a single criminal case is distributed among a number of different
lawyers with different lawyers having responsibility for investigating the matter, presenting the indictment,
and trying the case, supervisory lawyers must establish procedures to ensure that the prosecutor
responsible for making disclosure obtains evidence and information that must be disclosed. Internal policy
might be designed to ensure that files containing documents favorable to the defense are conveyed to the
prosecutor providing discovery to the defense, and that favorable information conveyed orally to a
prosecutor is memorialized. Otherwise, the risk would be too high that information learned by the
prosecutor conducting the investigation or the grand jury presentation would not be conveyed to the
prosecutor in subsequent proceedings, eliminating the possibility of its being disclosed. Similarly, procedures
must ensure that if a prosecutor obtains evidence in one case that would negate the defendant's guilt in

another case, that prosecutor provides it to the colleague responsible for the other case. 42

 

42 In some circumstances, a prosecutor may be subject to sanction for concealing or
intentionally failing to disclose evidence or information to the colieague responsible for
making disclosure pursuant to Rule See, Rule 3.4(a) (lawyer may not unlawfully
conceal a document or other material having potential evidentiary value); Rule 8.4(a)
(lawyer may not knowingly induce another lawyer to violate Rules of Professional Conduct);
Rule 8.4(c) (lawyer may not engage in conduct involving deceit); Rule 8.4(d) (lawyer may
not engage in conduct that is prejudicial to the administration ofjustice).

 

 

Permei ?einions

Formal opinions are issued by the ABA Standing Committee on Ethics and Professional Responsibility. They
appear here in full text and are copyrighted by the ABA.

 

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