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 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

is a glimpse at some of the more recent cases that have arisen recently: • In September 2020, Judge Alison Nathan, of the Southern District of New York (SDNY), noted his concern in the trial of Ali

Sadr Hashemi Nejad about “belated disclosure of arguably (and in one instance, admittedly) exculpatory evidence.”4 • In February 2022, during the 1MDB (the Malaysian state investment fund) trial of former Goldman Sachs banker Roger Ng,

SDNY prosecutors “said the government had failed to promptly turn over thousands of pages of emails and other personal documents belonging to a key witness for the prosecution.”5 • In St. Louis, a Missouri ethics panel recommended a public reprimand for the St. Louis Circuit Attorney for “erroneously [telling] the court … that all notes from interviews had been turned over to the defense, [and] … fail[ing] to comply with a legally proper discovery request ….”6

Of course, one of the most famous discovery violation issues over the past 20 years is the DOJ’s prosecution of Alaska Senator Ted Stevens. The aftermath of that case resulted in the publication of the Schuelke Report, which delivered findings relating to the potentially exculpatory material that trial prosecutors failed to turn over in contravention of their discovery obligations.7 While one might not necessarily call this an “epidemic of Brady violations abroad in the land” akin to Judge Alex Kozinski’s famous commentary in United States v. Olsen, the frequency that this occurs in relatively prominent prosecutions could raise some eyebrows.8

So, whither Rule 3.8(d)? Again, this Model Rule adopted by the ABA has been around for almost 40 years. Virtually every state jurisdiction has encoded ABA Model Rule 3.8 into the DNA of their professional responsibility rules.9 A brief view of several different jurisdictions demonstrates that numerous states have adopted the ABA’s model rule in totem and without material change. For instance, the Utah State Bar (where I practice) has adopted ABA Model Rule 3.8(d).10 Other states, including Massachusetts, Colorado, Louisiana, and many others, have also adopted ABA Model Rule 3.8(d) in full.11

Certain states have adopted altered versions of ABA Model Rule 3.8(d), and examining the altered changes to this rule is illuminating. For instance, California’s Rule 3.8(d) takes a slightly different tack than the ABA’s Model Rule and Rule 3.8(d) as adopted by other states. California’s Rule 3.8(d) states that the prosecutor shall

make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;12

California’s addition of “reasonably should know” is instructive. While numerous states require only “actual knowledge” by the prosecutor of the evidence that negates the guilt of the accused or mitigates the offense, California places the burden on the prosecutor if they “reasonably should know” about this evidence. DOJ department policy doesn’t necessarily mirror the California rule, but that policy does state that a “prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant … regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.”13

Other states, like North Carolina, add certain requirements for the prosecutor that go further than just “actual knowledge,” such as requiring the prosecutor to make a timely disclosure “after reasonably diligent inquiry.”14 Reasonably diligent inquiry could be subject to various interpretations, of course, but one hopes that prosecutors take this duty seriously and do more than merely ask their case agents or the prosecution team whether they know of exculpatory evidence that should be turned over to the defense.15 The DOJ Justice Manual provides a helpful (nonexhaustive) list of “What to Review” for this diligent inquiry, and state/local prosecutors offices might want to think about adopting this list if they don’t already have one.16

Meanwhile, the DC Bar’s Rule 3.8(d) isn’t even in Rule 3.8(d). Indeed, the DC Bar appears to take one of the most forceful tacks of all the myriad states’ professional conduct rules when it comes to the special responsibilities of prosecutors relating to exculpatory evidence.17 It includes a separate prong in Rule 3.8 that doesn’t usually appear in the rules of other states, placing significant onus on the prosecutor in that jurisdiction. It reads:

The prosecutor in a criminal case shall not:

. . . . Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. 18

Rather than labeling this as Rule 3.8(d), the DC Bar labels this as Rule 3.8(e).

DC Bar Rule 3.8(d) requires that the prosecutor “shall not … [i]ntentionally avoid pursuit of evidence or information because it may damage the prosecution’s case or aid the defense ….”19 Placing the burden on the prosecutor to not intentionally avoid pursuing information is highly intriguing. Such a burden squares with the mantra that a prosecutor should seek to do justice in every case and should “ensure confidence in fair trials and verdicts.”20 While other states don’t go as far as the DC Bar in explicitly making this a rule, the North Carolina Bar includes this same statement in its “Comment” portion of the North Carolina State Bar Rules of Professional Conduct.21 While such a statement maybe should go without saying, other states might desire to adopt the DC Bar’s approach and make this statement more explicit. Indeed, when it comes to professional conduct rules, making them more clear and transparent, rather than leaving things unsaid, is possibly a prudent approach.

Like the DC Bar’s approach, Ohio’s State Court Rules of Professional Conduct takes a “negative approach” to the prosecutor’s duties. Ohio’s Rule 3.8(d) notes, “The prosecutor in a criminal case shall not do any of the following” and continues:

(d) fail 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 or mitigates the offense, and, in connection with sentencing, fail to disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by an order of the tribunal;22

Placing the burden on the prosecutor to “not” do things, as opposed to requiring a “positive” burden on the prosecutor to “ensure” things happen, is helpful and instructive. Indeed, we as lawyers (no matter the practice area) tend to look at what we can’t do, rather than what we should do, when we practice law. It seems that the state bars that place the burdens on the prosecutors in this type of “negative” vein clearly grab the attention of the reader.23

Finally, to finish our tour of several different state versions of Rule 3.8(d), we gaze upon the Virginia State Bar Professional Guidelines,24 which apparently have some slight differences with the Virginia State Code. The Professional Guidelines mirror the ABA Model Rule, requiring “timely disclosure to counsel for the defendant … of the existence of evidence with the prosecutor knows tends to negate the guilt of the accused, [or] mitigate the degree of the offense ….”25 The Notes for the Virginia State Bar Professional Guidelines state, in pertinent part:

[Rule 3.8(d)] address[es] knowing violations of the [] provision [] so as to allow for better understanding and easier enforcement by excluding situations … for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence ….26

The Virginia State Bar Professional Guidelines state that its Rule 3.8(d) is like the Virginia State Code “but requires actual knowledge on the part of prosecuting lawyers that they are in possession of exculpatory evidence as opposed to simply being in knowing possession of evidence that may be determined to be of such a nature ….”27 Making the issue actual knowledge seems to be an important caveat. There are clearly times when a prosecutor does not know the theory of the defense, and for that prosecutor, assessing potentially exculpatory evidence might be difficult. Of course, these rules should tread in a more liberal direction, and prosecutors should generally seek reasons to provide information to the defense, rather than seek reasons not to provide it. The DOJ Justice Manual clearly notes that prosecutors should take a broader view of potential exculpatory material.28

Overall, most of the state bar rules and guidelines, while mirroring ABA Model Rule 3.8(d), provide some interesting and intriguing differences that are useful to states seeking to strengthen their own version of Rule 3.8(d). Furthermore, when prosecutors are “familiar with laws and policies regarding discovery obligations, [they] are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case.”29 And a just result in every case should be the paramount goal for all involved in the criminal justice system. 

Endnotes

1Model Rules of Pro. Conduct r. 3.8 (Am. Bar. Ass’n 1983). 2Id. 3Id. “The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. They serve as models for the ethics rules of most jurisdictions.” Am. Bar Ass’n, Model Rules of Professional Conduct: About the Rules, https://www.americanbar. org/groups/professional_responsibility/publications/model_rules_ of_professional_conduct/ (last visited July 18, 2022). 4United States v. Nejad, No. 1:18-CR-224 (S.D.N.Y. Sept. 16, 2020), ECF No. 379. 5Matthew Goldstein, 1MDB Trial Will Take a Break So the Defense Can Study New Documents, N.Y. Times (Feb. 23, 2022), https:// www.nytimes.com/2022/02/23/business/roger-ng-trial-1mdb.html. Interestingly, this was "the second time in a little over a week" that this had happened. Id. 6Hailey Konnath, Ethics Panel Wants Reprimand for St. Louis’ Top Prosecutor, Law360.com (May 11, 2022), at https://www. law360.com/whitecollar/articles/1492524/ethics-panel-wantsreprimand-for-st-louis-top-prosecutor?nl_pk=fa0f843b-0ca94fac-825f-74902338d80f&utm_source=newsletter&utm_ medium=email&utm_campaign=whitecollar&utm_ content=2022-05-12. 7In re Special Proceedings, No. 1:09-mc-198 (D.D.C. Mar. 15, 2012), ECF No. 84. See also Carrie Johnson, Report: Prosecutors Hid Evidence in Ted Stevens Case, NPR.org (Mar. 15, 2012), at https:// www.npr.org/2012/03/15/148687717/report-prosecutors-hidevidence-in-ted-stevens-case. 8United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, J., dissenting from order denying the petition for rehearing en banc); Debra Cassens Weiss, ‘Epidemic of Brady violations’ decried in Kozinski opinion, ABA Journal (Dec. 11, 2013), at https://www. abajournal.com/news/article/epidemic_of_brady_violations_ decried_in_kozinski_opinion/. 9See, e.g., Cal. Rules of Pro. Resp. r. 3.8; Col. R. of Pro. Conduct r. 3.8(d); La. Rules of Pro. Guidelines r. 3.8(d); Mass. Rules of Pro. Resp. r. 3.8; Va. State Bar Pro. Guidelines r. 3.8. 10Utah Code of Jud. Admin. r. 13-3.8. 11See supra note 9. 12Cal. Rules of Pro. Resp. r. 3.8(d). 13U.S. Dep't of Just., Just. Manual § 9-5.001(C)(1) (2020). 14N.C. Rules of Pro. Conduct r. 3.8(d). 15 The Justice Manual from DOJ outlines “What to Review” and generally from whom to review, including “The Investigative Agency’s Files,” “The Confidential Informant (CI)/Witness(CW)/ Human Source(CHS)/Source (CS) Files,” “Evidence and Information Gathered during the Investigation,” “Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Proceedings,” “Substantive Case-Related Communications,” Giglio Information, and “Information Obtained During Witness Interview,” as part of the potentially discoverable material within the custody or control of the prosecution team. Just. Manual § 9.5.002(B), supra note 13. See also Just. Manual § 9.5001(B) (2) (outlining the obligation of federal prosecutors to seek all exculpatory information from all members of the prosecution team and outlining the likely members of that prosecution team). 16Id. 17See DC Bar R. of Pro. Conduct r. 3.8. 18Id. at r. 3.8(e). 19Id. at r. 3.8(d). 20Just. Manual § 9.5001(F), supra note 13.