Just how much evidence federal prosecutors should be required to hand over to defense attorneys has become a fight between a Tennessee ethics agency and the Department of Justice (DOJ). The Tennessee Supreme Court’s Board of Professional Responsibility (BOR) published an ethics opinion earlier this year that announced prosecutors have a higher ethical obligation to divulge certain discovery than what is required under the Constitution. Shortly thereafter, the DOJ’s three U.S. attorneys in Tennessee wrote a scathing 10-page letter and demanded a hearing before the Tennessee BOR, which is scheduled for September.

The Issue

The BOR opinion addresses what any prosecutor in Tennessee, whether local or federal, should do when he or she has exculpatory evidence — evidence that could prove a defendant’s innocence of the charges. The issue was addressed by the United States Supreme Court in Brady v. Maryland, as well as other decisions, that district attorneys owe a duty to disclose exculpatory evidence only when it is “material” to the case. In short, exculpatory evidence must be disclosed if it would likely change the outcome of the case.

While the DOJ believes the Brady guidelines are sufficient, lawyer ethics panels in at least 12 states claim it is a vague and impotent standard. They note prosecutors are left to define materiality, essentially allowing prosecutors to decide whether or not the evidence will be useful to the defense. AWhile prosecutors typically do not turn over evidence until trial, statistics show that more than 95%t of criminal cases are decided before then during the plea bargaining process.

Adopting New Rules on Disclosure

Tennessee and other states are adopting ethics rules that require prosecutors hand over all discovery that is somehow favorable to a defendant. Prosecutors must hand this evidence over, according to these agencies, whether or not they believe it would affect the outcome of the case. The exculpatory evidence must also be handed over early enough in the case so that the defense may use the information effectively — in other words, before any kind of hearing when a guilty plea may be made by an accused.

While Tennessee’s and other ethics boards are not courts of law, they are generally overseen by a high court. This gives these ethics boards the power to publicly discipline lawyers who practice in their state — including federal prosecutors. These ethics boards also have the authority to suspend attorneys’ licenses or even debar them from the legal profession.

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