The Laurie Levenson and Barrry Scheck wrote an editorial in December 15, 2014 outlining several examples of Brady violations, including the case of one defendant named “Kash Register.” None of these men were proven innocent, but they were released as the result of Brady violations by the prosecution.
Under current law, a prosecutor’s duty to disclose exculpatory evidence is found in three places. First, the Due Process Clause of the 14th Amendment requires a prosecutor to provide a defendant with material favorable evidence relevant to either guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87.) Second, Penal Code § 1054.1(e) mandates that a prosecutor must disclose to a defendant “[a]ny exculpatory evidence.” Third, the California Rules of Professional Conduct state that “[a] member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or produce.” (Rules Prof. Conduct, Rule 5-220.)
Failure to follow these rules can result in contempt of court, suppression of evidence (including witness testimony), reversal of a conviction, and suspension or disbarment from the practice of law. (Kyles v. Whitley (1994) 514 U.S. 419, 421-422; Pen. Code § 1054(b); Price v. State Bar (1982) 30 Cal.3d 537, 547-550.) Under the current rule, 20% of attorney discipline cases for prosecutors are the result of discovery violations.
The Proposed Rules
Levenson and Scheck propose a new ethical rule mandating disclosure of any “potentially helpful” evidence. They argue that the “materiality” standard is presents “cognitive difficulties” that would be resolved with a “potentially helpful” standard. They don’t explain how simply substituting one set of words describing evidence to another set of words would simplify things.
They also argue for statewide adoption of the ABA Model Rule 3.8. This imposes a broader, independent duty of disclosure on prosecutors. A prosecutor 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[…].”
The difference between the new rule and the rules proposed by Levenson and Scheck seems to be that a prosecutor violates the current rule only when she “suppresses” evidence. The proposed rule would mean that a prosecutor commits an ethical violation when they “fail to disclose” evidence “known to the prosecutor.” Just looking at the black letter of the two versions of the rule, they don’t appear to be very different. A closer look, however, seems to show that the new rule would impose a stricter ethical duty on the prosecutor to disclose evidence that he or she doesn’t know about. Under the current rule, a prosecutor cannot suppress evidence that she is unaware of. The new rule seems to be the same, except that the Courts have given a broad interpretation to the concept of what the prosecutor is aware of. Courts have held that prosecutors are aware of any information in her possession, or that she might discover in the possession of law enforcement.
Scheck and Levenson say that the new rule is “not about making the average prosecutor’s job more difficult or punishing prosecutors for innocent mistakes.” Although that may not be their intention, that is exactly what this rule change would do. The rule change makes an ethical violation of any failure to disclose evidence, even inadvertent failures. A prosecutor violates Brady, and would violate this ethical rule, when the existence of the undisclosed material evidence is unknown to the prosecutor. (Kyles v. Whitley (1994 514 U.S. 419, 437.)
Prosecutors, who already handle a shocking number of cases, would be faced with an ethical violation in each case if they mistakenly fail to disclose evidence. As defense lawyers are fond of reminding us, Brady imposes a duty of investigation, not just disclosure. All evidence in the prosecutor’s possession, and also in the possession of law enforcement, must be turned over, whether or not the prosecutor herself is aware of the evidence. The new rules, as proposed, would mean that a prosecutor would have to painstakingly review each case, and follow up with the investigating agency, to determine whether they have any evidence they have not disclosed, even if she is not aware of anything that might lead her to suspect undisclosed evidence. This is simply not possible for many prosecutors, who handle a calendar of 30 cases each day. These prosecutors are being set up to fail.
With the proposed rule, the consequences of failing to disclose Brady evidence would be a crippling ethics violation that would follow a prosecutor around for the rest of her career, ethical violations are listed for the public to see on the California State Bar website. This is not a change for the better.