Wednesday, September 11, 2019
Supreme Court of Tennessee Finds Rule of Professional Conduct 3.8(d) is Coextensive With the Brady Doctrine
In its opinion in Brady v. Maryland, the Supreme Court held that the Due Process Clause obligates the prosecution to timely disclose material exculpatory evidence to the defense. Meanwhile, Tennessee Rule of Professional Conduct 3.8(d) states that
The prosecutor in a criminal case:....
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, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal....
So, does the obligation imposed by Rule 3.8(d) exceed to obligation imposed by Brady v. Maryland?
According to an opinion by the Tennessee Board of Professional Responsibility, it does. That opinion concluded that
Tennessee Rule of Professional Conduct 3.8(d) is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor’s legal disclosure obligations. This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady. Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or otherwise falls within RPC 3.8(d)'s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.
In a recent opinion, however, the Supreme Court of Tennessee reversed this ruling. According to the court, "several courts have interpreted a prosecutor’s ethical duty in that jurisdiction to extend beyond the obligations in Brady," but "[o]ther courts have interpreted their ethical rules as being coextensive with Brady obligations, mainly based on public policy reasons." The court then sided with this latter line of precedent, holding that
We agree with the policy interests espoused in the line of cases determining their ethical rules for prosecutors as coextensive with the constitutional obligations under Brady. To say that our ethical rules require prosecutors to consider different standards than their constitutional and legal requirements has the potential to bring about a myriad of conflicts....As an example, the United States' amicus brief filed with this Court cited a motion filed in a federal district court requesting that the United States disclose the names of confidential informants and “all information about the Informant that could be useful to the defense.” The request for information was not based on the prosecutor’s legal duty under Brady but pursuant to the prosecutor’s ethical obligations under Rule 3.8(d)....Thus, based on our review, we decline to interpret Rule 3.8(d) as providing any greater ethical obligation upon prosecutors than the constitutional obligations under Brady and its progeny.