Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)?

By Bruce Green

Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)?  Do prosecutors’ offices take sufficient measures to promote compliance?  These are among the hottest subjects of discussion in criminal justice.  The discussion has been fueled in recent years by the Duke lacrosse and Ted Stevens prosecutions, among others, in which prosecutors have been found to have acted improperly.  Connick v. Thompson and other recent Supreme Court cases also illustrate the problem, which was the subject of a two-day Cardozo Law School conference not long ago and will be addressed at an upcoming Mercer Law School symposium.  Illustrating that discussions can be not just hot but also heated, the NYS Bar Association and the state prosecutors’ association recently got into a contretemps over a column written by the criminal defense lawyer who chairs the bar association’s criminal justice section.  The prosecutors took offense at a suggestion that prosecutors’ offices train their lawyers to violate their discovery obligations.  The two associations have now reportedly reached what, one might hope, is a resolution of the disagreement.  Ideally, this will allow lawyers on both sides of the aisle to go back to work, live in peace, and perhaps even collaborate productively in the bar association and other fora to improve the criminal justice process for the public benefit.

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