Wednesday, March 30, 2011
Bruce A. Green (Fordham University School of Law) has posted Prosecutors’ Ethical Duty of Disclosure: In Memory of Fred Zacharias (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
ABA Model Rule 3.8(d) establishes an ethical duty on the part of criminal prosecutors 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.” A 2009 opinion issued by the ABA’s ethics committee concluded that the rule does not simply restate prosecutors’ disclosure obligation under Brady v. Maryland, but requires prosecutors to disclose favorable evidence as soon as reasonably practicable without regard to the materiality of the information. In contrast, the Ohio Supreme Court held in 2010 that prosecutors’ ethical duty under Ohio’s version of Rule 3.8(d) was no more extensive than their legal obligation. This essay, written in memory of Fred Zacharias and drawing on his scholarship, examines these conflicting visions of prosecutors’ ethical duty. It argues that the two bodies had differing conceptions of the rule – to adopt Professor Zacharias’s terminology – as either a rule of role or an integrity rule. The essay concludes that the different visions may each be justified, but that even so, the inconsistency is not ideal and has implications for the processes by which ethics rules are drafted and adopted.