At Sidebar
A Short Primer on ABA Model Rule 3.8(d) and Its Variants Among the States By Stewart M. Young
Stewart M. Young is a member of the editorial board of The Federal Lawyer and currently serves as president of the Utah Chapter of the FBA. He serves as an assistant U.S. attorney (AUSA) in the District of Utah. He previously served as an AUSA in San Diego and as a tenure-track law professor at the University of Wyoming College of Law. He is a graduate of Stanford Law School and Princeton University. Young writes in his personal capacity; the views expressed are not necessarily those of either DOJ or the U.S. Attorney’s Office for the District of Utah.
Over the past several years, the Department of Justice (DOJ) and state/local prosecutors’ offices have undertaken considerable time, expense, and effort to train prosecutors on their professional and ethical duties related to discovery. These entities have sought to ensure that prosecutors understand their collective ethical duties regarding disclosure of evidence, especially in the context of exculpatory evidence concerning their Brady and Giglio obligations. The DOJ and various state/local prosecutors’ offices have made yeoman’s efforts over a long period. And yet, in several recent prosecutions around the country, certain discovery concerns continue to arise. This column will not offer a panacea for these discovery concerns, nor will it excoriate prosecutors. Rather, this seems like an opportunity to discuss discovery issues and offer a primer on the various rules relating specifically to American Bar Association (ABA) Model Rule 3.8(d). Indeed, one hopes this will be a useful primer for criminal practitioners on the rules of professional conduct regarding Rule 3.8(d) throughout various jurisdictions. The ABA established Model Rule 3.8, which outlines the Special Responsibilities of Prosecutors.1 There are myriad prongs within Rule 3.8 that engender important discussion about prosecutorial duties and ethical responsibilities. Rule 3.8 reads (with certain portions removed):2 The prosecutor in a criminal case shall: (a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; .... (d) Make timely disclosure to the defense of all evidence or information knowing 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
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when the prosecutor is relieved of this responsibility by a protective order of the tribunal; .... (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. Of course, each of these important sections in and of itself could be its own “At Sidebar” conversation. In this short discussion, however, let us focus on Rule 3.8(d), which the ABA adopted in 1983.3 This Model Rule serves as the North Star for most state bar ethics rules, and is (or should be) well-known to the courts, prosecutors, and defense counsel. For almost 40 years, ABA Model Rule 3.8(d) has guided prosecutors in their duties, while numerous state bars and attorney organizations (and prosecutors’ offices) have conducted extensive training on this (and similar) professional conduct rules. Despite this rule’s place in the pantheon of professional conduct rules for several decades, concerns with its violation still end up in the news fairly often. At this juncture, a quick look at some recent cases relating to Rule 3.8(d) and discovery violations is in order. Here
