American Bar Association

American Bar Association



American Bar Association

The American Bar Association (ABA) has now officially clarified that the ethical obligation of disclosure under Rule 3.8(d) of the Model Rules of Professional Conduct is broader than the constitutional obligation established by Brady v. Maryland and its progeny.1 In Formal Opinion 09-454, which took result Jan. 1, 2010, the ABA settled the issue, which for years had created some confusion and uncertainty among courts, state Bar Associations, and even prosecutors. The Opinion explained that, although the disclosure obligation under Rule 3.8(d) may overlap with prosecutors' other disclosure obligations, it is “separate from” any imposed under the “Constitution, statutes, procedural rules, court rules, or court orders.”2 This clarification continues the ABA's latest, commendable effort to revise the Model Rules to assist avert and fix wrongful convictions.(Batkins, 2004)The Obligation

The language of Model Rule 3.8(d) has not changed:A prosecutor in a criminal case shall[4]: … make timely disclosure to the defense of all clues or information renowned to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in attachment with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information renowned to the prosecutor, except when the prosecutor is reassured of this responsibility by a shielding alignment of the tribunal.(Davis, 2001)

Although most courts and prosecutors were broadly accepted to appreciate the broader disclosure obligation imposed by this language, couple of courts discussed the obligation in their published opinions and, of those that did, a number got it incorrect — incorrectly assuming it only mirrored the Brady obligation.(Batkins, 2004) State and local ethics opinions also only rarely suggested cooperative clarifications, and because couple of prosecutors are disciplined for disclosure violations — perhaps because of the previous incorrect interpretations of the obligation — there are couple of disciplinary opinions from which to draw guidance. The ABA Standing Committee on Ethics and Professional Responsibility determined to set things straight with Formal Opinion 09-454.(American Bar Association, 2005)

The scope of the disclosure obligation under Rule 3.8(d) is fixed in the ABA's long acknowledgement that, as the Supreme Court also reasoned in fashioning the constitutional disclosure obligation.[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.(Batkins, 2004) This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is determined upon the basis of sufficient clues, and that ...