What are the “special responsibilities of a prosecutor?”

In Brady v. Maryland and subsequent cases interpreting Brady (often called the “progeny” of Brady, as if these cases are Brady’s bastard children carrying on its legacy), the US Supreme Court held that it violates due process when a prosecutor withholds exculpatory information from a defendant.

More recently, the American Bar Association implemented Rule 3.8, a proposed rule of professional responsibility (model rule) that outlines a prosecutor’s unique ethical duties in a criminal case. South Carolina adopted Rule 3.8 in its entirety.

How is the US Supreme Court’s holding in Brady different from the ethical rules that govern attorneys? Should they be the same? Should we demand nothing more from prosecutors than what is outlined in a US Supreme Court case that decides when due process is violated?

Some states think so… Why?

What are the Special Responsibilities of a Prosecutor?

“Special Responsibilities of a Prosecutor” is the title of Rule 3.8 of the SC Rules of Professional Responsibility, which was adopted from ABA Model Rule 3.8.

Brady v. Maryland, on the other hand, is a US Supreme Court case that held it is a violation of due process for a prosecutor to withhold exculpatory evidence from a defendant.

Special Responsibilities of a Prosecutor Under Brady v. Maryland

Brady v. Maryland was not about a prosecutor’s responsibilities under the ethics rules, although it clearly touches on them. It was an appeal from a criminal conviction where the parties were asking the Court to decide whether it violates due process for a prosecutor to withhold exculpatory evidence from a defendant.

The US Supreme Court was not enshrining an all-inclusive list of a prosecutor’s ethical duties. That’s not what an appellate court does. An appellate court decides the narrow issues that are presented to them by the parties in the case – in this case, 1) whether withholding exculpatory evidence violates due process, and 2) whether the conviction in the case before them should be reversed.

The ABA Journal points out that:

[t]his obligation differs from the holdings in Brady and subsequent cases, such as Giglio v. United States (1972). In those decisions, the court carved out a rule finding that prosecutors violate the due process clause of the 14th Amendment if they withhold evidence from the defense in criminal cases that, if disclosed, likely would have been material to the outcome of the case.

Does it stand to reason that, 1) if the US Supreme Court finds that if a violation of one of a prosecutor’s ethical duties (disclosing exculpatory evidence) also will result in reversal of a conviction because it violates a defendant’s due process, then 2) prosecutors have no other ethical duties to defendants?

It’s comparing apples to oranges – the question decided in Brady was a limited issue raised in the criminal trial below. A prosecutor’s ethical duties, however, are determined by each state’s Rules of Professional Responsibility.

What do the Rules of Professional Responsibility say about the special responsibilities of a prosecutor?

Rule 3.8: Special Responsibilities of a Prosecutor Under the Ethics Rules

SC’s Rule 3.8, which is identical to the ABA Model Rule, says:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) 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;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Should the Ethics Rules that Apply to Prosecutors Be Limited to Brady?

Rule 3.8 requires that prosecutors:

(d) 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…

Brady requires that prosecutors disclose information that would have been material to the outcome of the case. If they do not, a conviction may be reversed on appeal.

The ethics rules require that prosecutors disclose “all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…” which is a different standard than the one outlined in Brady.

One is a standard for determining a due process violation on appeal. The other is an ethics rule adopted by the State Bar. Why would a state limit a prosecutor’s ethical responsibilities to a Supreme Court opinion that was limited to a single issue in a single case?

The Tennessee Ethics Opinion

In 2018, Tennessee issued an ethics opinion stating that a prosecutor’s ethical duties extend beyond that outlined in Brady:

In its 2018 ethics opinion, the Tennessee Board of Professional Responsibility determined that “[a] prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady,” following ABA Formal Ethics Opinion 09-454, which determined the standard is “more demanding than the constitutional case law, in that 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.”

Then, the Tennessee Supreme Court “stayed the effectiveness” of the ethics opinion. Why?

But after the Tennessee Board of Responsibility issued its ethics opinion, the U.S. attorneys for the Middle, Eastern and Western Districts of Tennessee requested the board to reconsider and rescind the opinion. The board appointed a committee to review the opinion. That committee recommended the opinion remain in place.

The Tennessee District Attorneys General Conference filed a petition with the Tennessee Supreme Court, asking the court to “stay the effectiveness” of the ethics opinion. On Aug. 23, the court did so in In Re: Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163.

The prosecutors asked the Tennessee Board of Professional Responsibility to rescind their opinion, and they declined. The prosecutors then went to the Tennessee Supreme Court and got them to say the ethics opinion is invalid.

At prosecutors’ request, the Tennessee Supreme Court has publicly announced that prosecutors do not have to follow the Tennessee Rules of Professional Responsibility…

Are Prosecutors’ Ethical Obligations in SC Limited to the Holding of Brady?

No.

Prosecutors in SC are ethically bound to disclose “all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…” Of course, they are on the “honor system,” because the ODC is not going to discipline a SC prosecutor for something so trivial as hiding exculpatory evidence.

Brady is an appellate opinion that articulates the standard on appeal for reversal of a conviction when the prosecutor’s misconduct constitutes a due process violation. The Rules of Professional Responsibility contain the ethics rules that govern lawyers – lawyers (non-prosecutors, anyway) are subject to discipline up to and including disbarment for violating those rules.

Criminal Defense Lawyer in Charleston, SC

If you are charged with a crime in the Charleston, Myrtle Beach, or Georgetown areas, or if you believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.