Prosecutors’ Ethical Obligations to Disclose Information Favorable to the Defense

New York, September 6, 2016 – The City Bar’s Professional Ethics Committee has issued a Formal Opinion on prosecutors’ disclosure obligations under New York’s ethical rules (Formal Opinion 2016-3). Prosecutors have a legal obligation to disclose information that is material and exculpatory (e.g., Brady material). Under the New York Rules of Professional Conduct, Rule 3.8(b) requires prosecutors to “timely” disclose evidence that is “favorable” to the accused. As the Opinion explains, these obligations are not coextensive. 

The Opinion addresses two questions:  (1) Does Rule 3.8(b) require a prosecutor to disclose information that is not necessarily “material” and otherwise may not need to be disclosed under relevant state and federal constitutional decisions? And (2) what constitutes “timely disclosure” under Rule 3.8(b)?

With regard to materiality, the Opinion concludes, “[w]hile Brady has been held to require a prosecutor to disclose only ‘material’ evidence favorable to the accused, Rule 3.8 on its face is not subject to the same materiality limitation.” While some have argued that Rule 3.8 is simply an ethical codification of Brady, the Opinion reasons that “there is no evidence to support that argument.” The history and text of Rule 3.8(b) as well as authorities from other jurisdictions that have interpreted similar rules support this interpretation. Analyzing the text of New York Rule 3.8(b) as well as its analog in the ABA Model Rules, the Opinion concludes that both rules “were not simply codifications of evolving constitutional requirements and, in particular, did not include a materiality requirement.” Instead, the Opinion reasons that prosecutors’ ethical and legal obligations “are intended to augment one another.”

The Opinion also notes that, unlike prosecutors’ obligations under Brady, Rule 3.8(b) does not require prosecutors to conduct an investigation to uncover information that may be covered by Rule 3.8(b). The Opinion reasons that “[i]n this respect, too, Rule 3.8(b) is not a codification of disclosure obligations established by law. Rather, in this context the rule is less demanding than applicable legal disclosure obligations.” 

With regard to Rule 3.8(b)’s “timeliness” requirement, the Opinion concludes that “once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or that otherwise falls within the rule’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” This is so because the “purpose of disclosure ordinarily includes not only facilitating a potential trial defense but also assisting the defense prior to trial….” It further notes that, “here timely disclosure might be harmful – e.g., where it might lead to witness tampering or obstruction of justice – the rule contemplates that the prosecutor may be relieved of the responsibility to make timely disclosure ‘by a protective order of a tribunal.’”

The opinion can be read here:

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The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.