Sunday, March 16, 2008

The Skilling Discovery Problem - Part II of Commentary

The Wall Street Jrl just reported on the release of Skilling's Supplemental Brief and its discussion of the Fastow Notes.  As the White Collar Crime Prof Blog noted here, if prosecutors failed to provide Brady material, Jeff Skilling's conviction could be in jeopardy.  Also discussed here was the importance of full and open discovery by prosecutors.  When a prosecutor provides limited discovery, the prosecutor opens him/herself up to being accused of not giving the defense exculpatory material.

Discovery violations, if they in fact happen, can also violate ethical rules for attorneys.  The applicable rules depend on what has or has not been adopted in the particular jurisdiction.  The ABA Model Rule provides in Rule 3.8 that:

"The prosecutor in a criminal case shall: ...

(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;"


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