An Update on a Not So Recent Discovery Post

October 21, 2014
By Hanging Out with Carl Gunn


  • Additional Ninth Circuit case law supports the argument that the pretrial test for prosecutors’ duty to disclose exculpatory evidence doesn’t require the evidence to rise to some particular level of importance, or “materiality.”
  • The Department of Justice’s own policy – as set forth in the U.S. Attorney’s Manual – also sets a lower pretrial threshold.
  • And the Model Rules of Professional Conduct – as well as an ABA ethics opinion – require disclosure irrespective of the evidence’s importance.


In the CLE presentation I talked about last week, Peter Offenbecher also pointed to some additional authority relevant to another prior post – one not so recent – on the appropriate standard to apply for Brady material at the pretrial stage of proceedings (see “A Third Government Misunderstanding: About Its Basic Brady Obligation” in the June 2012 link at the right). That prior post made the point that the pretrial standard for disclosure of exculpatory evidence – as opposed to the post-trial, appellate standard – doesn’t require that the evidence be so important that it would likely change the result of the trial. At the pretrial stage, the prosecutor’s obligation is to disclose any evidence that tends to help the defense by either bolstering the defense’s case or impeaching prosecution witnesses. I noted the wonderful articulation and explanation of this different pretrial standard by Central District of California District Judge Pregerson in United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999). I also noted Sudikoff’s subsequent adoption by several other district courts and citation with approval by the Ninth Circuit in United States v. Price, 566 F.3d 900 (9th Cir. 2009).

In addition to pointing out Sudikoff and Price, Peter Offenbecher pointed out some other authority. First, there’s another Ninth Circuit case that’s come out since my prior post – United States v. Olsen, 704 F.3d 1172 (9th Cir. 2013). The court noted there:

A trial prosecutor’s speculative prediction about the likely materiality of favorable evidence . . . should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be “material” after trial. Thus, “there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.” United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). As this court has noted, some trial courts therefore have concluded that the retrospective definition of materiality is appropriate only in the context of appellate review, and that trial prosecutors must disclose favorable information without attempting to predict whether its disclosure might affect the outcome of the trial. (Citing cases including Sudikoffand Price.)

Olsen, 704 F.3d at 1183 n.3.

Peter Offenbecher also pointed out some non-case authority. First, the government itself, while claiming it is not legally required, sets a standard for disclosure comparable to that articulated by Judge Pregerson in the Sudikoff case. In its United States Attorney’s Manual, the Department of Justice states:

C. Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required.Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), andStrickler v. Greene, 527 U.S. 263, 280-81 (1999). . . .

1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.

2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence – including but not limited to witness testimony – the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for the charged crime.

3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.

4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items together can have such an effect. If this is the case, all such items must be disclosed.

United States Attorney’s Manual § 9-5.001.

There are also outside ethics rules. Model Rule of Professional Conduct 3.8(d) states that “[t]he prosecutor in a criminal case shall . . . 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.” The rule says nothing about an additional requirement that the evidence rise to some level of significance, and an American Bar Association ethics opinion (linked here) concludes that the rule does not implicitly include any such limitation either. That ethics opinion states:

Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on the trial outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.

Under Rule 3.8(d), evidence or information ordinarily will tend to negate the guilt of the accused if it would be relevant or useful to establishing a defense or negating the prosecution’s proof. Evidence and information subject to the rule includes both that which tends to exculpate the accused when viewed independently and that which tends to be exculpatory when viewed in light of other evidence or information known to the prosecutor.

Further, this ethical duty of disclosure is not limited to admissible “evidence,” such as physical and documentary evidence, and transcripts of favorable testimony; it also requires disclosure of favorable “information.” Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer to admissible testimony or other evidence or assist him in other ways, such as in plea negotiations. In determining whether evidence and information will tend to negate the guilt of the accused, the prosecutor must consider not only defenses to the charges that the defendant or defense counsel has expressed an intention to raise but also any other legally cognizable defenses. Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.

ABA Standing Committee on Ethics and Professional Responsibility, Formal Op. 09-454 (2009), at 4-5 (footnotes omitted).

This non-case authority can be leveraged into a legal mandate, moreover. An example of this can be found in an Alaska District Court opinion which is not published in the official reporters but is available on Westlaw. See United States v. Wells, No. 3:13-cr-00008-RRB-JDR, 2013 WL 4851009 (D. Ak. Sept. 11, 2013). The district court there cited both the United States Attorney’s Manual provision and the ABA ethics opinion quoted above and “directed [the prosecutors] to follow the Department of Justice’s own policies regarding what is discoverable and disclose exculpatory or impeachment information ‘regardless of whether the prosecutor believes such information will make a difference between conviction and acquittal of the defendant for charged crimes.’” Id. at *3 (quoting United States Attorney’s Manual § 9-5.001). And this Alaska district judge isn’t the only one to issue such an order. Participants at the CLE where I got this authority indicated that several judges in the Western District of Washington have done the same.

So there’s some additional authority in the Brady area as well as the Rule 16 “materiality” area I discussed last week. As I urged last week, keep reminding the prosecutors – and the courts – of what the cases – and the ethics rules and their own agency – say prosecutors’ obligations are, not what the prosecutors want to think they are.