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A press release from the American Bar Association states that prosecutors face a stronger duty to disclose information that might help defendants fight criminal charges under American Bar Association Model Rules of Professional Conduct than they do under the US Constitution.  But they are not obliged to search for information favorable to the defense.

Those are the conclusions of the ABA Standing Committee on Ethics and Professional Responsibility in an ethics opinion released today. 

The disclosure requirement is grounded in a prosecutor’s role as “a minister of justice, and not simply that of an advocate,” carrying “specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons,” said the committee.  ABA ethical standards have recognized a prosecutorial duty to not suppress facts that could establish innocence since 1908, more than 50 years before the Supreme Court of the United States ruled in Brady v. Maryland that the Constitution’s Due Process Clause extends the disclosure obligation beyond federal prosecutors to include state court prosecutors, noted the committee.

The committee said ethics Rule 3.8(d) requires prosecutors to share even information that they do not deem credible, while the Constitution only requires them to reveal “material” information, or evidence or material they view as likely to lead to acquittal.  “The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility,” said the committee, explaining disclosure is required if information “would be relevant or useful to establishing a defense or negating the prosecution’s proof.”  Disclosure must be timely, which the committee defined as “early enough that the information can be used effectively,” and as soon as reasonably practical.

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