Wednesday, September 10, 2014

Prosecutors' ethical obligations to comply with Brady; Managerial and Supervisory Obligations of Prosecutors under ABA Model Rules of Professional Conduct 5.1 and 5.3

On September 8, 2014 the ABA released Formal Ethics Opinion #467 dealing with the Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3. The opinion begins by noting that prosecutors “must ‘make timely disclosure to the defense’ of exculpatory and mitigating evidence” [emphasis added], contrary to the familiar prosecutorial mantra that “impeachment material is not Brady.”  

The opinion makes clear that “supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations,” noting that “reports, court opinions, and other authorities have drawn attention to prosecutorial misconduct . . . [that] suggest a need for more guidance.”  The opinion goes on to recommend the establishment of office-wide policies, training, supervision, and the creation of a “culture of compliance.”  

The opinion is relatively short, worthy of a careful read and perhaps inclusion as an exhibit in your motions for disclosure of Brady material.  

HT: Donald Rehkopf

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