According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.
Under the holding in Brady, prosecutors are only required to provide the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.
New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b)requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.
The New York City opinion can be read here.
Professional Responsibility: A Contemporary Approach 