Defense-Friendly Evidence Rule Riles Va. Prosecutors

By Andrew Strickler | June 9, 2019, 8:02 PM EDT

The U.S. Department of Justice is lining up with state prosecutors across Virginia to squash a novel ethics rule that would require them to highlight defense-friendly evidence in criminal case files.

The controversy over a proposed amendment to state Rule 3.8, which outlines the special duties of prosecutors, is focused on a scant few words prosecutors say will force them to do the work of opposing counsel and decide how each piece of evidence might benefit the defense — or face possible sanction.

On the other side, some members of the defense bar say a specific requirement for prosecutors to "identify" exculpatory evidence merely enforces existing duties and will discourage prosecutors from hiding defense-favorable material in discovery "dumps."

The proposal, now up for review at the state Supreme Court, adds a comment to the prosecutor rule explaining that the current duty to make a timely disclosure of exculpatory evidence applies to any evidence "known to the prosecutor." Once the prosecutor is aware of it, they "must timely identify and disclose that evidence."

The proposal has triggered a heated debate in the state, with more than a dozen city and county prosecutors telling the court in recent weeks that its adoption would unfairly shift an ethical and workload burden onto prosecutors and impede, rather than promote, the search for justice.

Stacy Ludwig, who heads the Justice Department's professional responsibility office, joined by both U.S. attorneys in the state, told the court in a May 21 letter that the rule was an ethical outlier that would be "impossible" to implement and result in disciplining "well-intentioned" prosecutors.

In an extensive examination of Rule 3.8 and possible ramifications of the addition, Ludwig argued that a requirement for prosecutors to "pinpoint" defense-friendly evidence ran counter to prevailing legal doctrine and case law on disclosure duties. And practically speaking, no prosecutor was in a position to know all the tactical avenues a defense might take, making it virtually impossible for them to "identify" every piece of relevant evidence in the course of a case, she said.

"By requiring the government to analyze and characterize evidence, [the proposed comment] undermines the adversary system by casting the government in the role of defense 'valet,'" she said.

But professional responsibility expert Bruce Green Fordham Law School called the state bar's proposal "innovative."

"This rule is trying to deal with the problem of a prosecutor who knows there is something important in their file and wants to bury it among a lot of other evidence," he said. "This would mean the prosecutor would have to specifically point out the favorable evidence and identify it as exculpatory, and that is an additional step."

David Damico, a veteran criminal defense attorney in Roanoke, said the amended rule could have benefits by limiting gamesmanship by prosecutors utilizing "the evidence haystack" to obscure exculpatory material, particularly in cases in which police have gathered hours of "body cam" and police cruiser video footage, cellphones or other electronic evidence.

However, mirroring the division in the legal community over the proposal, Damico has joined those opposing the rule. He argued to the state Supreme Court that the "identify" duty will encourage at least some prosecutors to stay "willfully blind" to the details of their case files in order to duck the new responsibility altogether.

He also pointed out that the practical effect of the rule could vary considerably between prosecutors who only turn over statutorily required evidence and those with an "open file" policy allowing defense lawyers access to all case materials.

"I am in favor of expanded discovery, and people acting in good faith can work out these discovery questions," he told Law360. "But the issue of cameras and all the technology is real, and there are prosecutors who want things to stay the same and keep their advantage. We just need to come up with something better than this."

The rule change was born of a Virginia State Bar ethics opinion proposed two years ago that contemplated a hypothetical "needle in a haystack" case involving hundreds of hours of recorded jail interviews which included a single statement that a prosecutor knew to be exculpatory. The opinion concluded that a prosecutor had a duty to specifically identify the statement to the defense.

Like the proposed rule amendment, the opinion drew a barrage of criticism from local and federal prosecutors who said it was redundant of current Brady duties, and would effectively force them to divine defense theories and speculate how every piece of evidence might be mined for exculpatory value for the defense. The bar withdrew the opinion.

But the issue continued last year with a related bar proposal for a Rule 3.8 amendment. A bar working group also drafted a revision that said sufficient disclosure was "dependent on the circumstances" and likely covered by prosecutors providing "a copy of or access to the evidence."

A final version of the rule submitted for approval to the state Supreme Court last month omitted the "access" language but included the "identify and disclose" requirement at the center of the current debate.

The Virginia amendment has no direct corollary in the American Bar Association model rules of professional conduct.

But with public attention raised in recent years on prosecutor conduct and wrongful convictions, a number of states have moved to strengthen other aspects of Rule 3.8, including the addition of a clarified duty for prosecutors to hand over exculpatory evidence even after a defendant is convicted. Many, but not all, of those state-led efforts have been opposed by local U.S. attorneys.

The Virginia Supreme Court, which has a final say on state conduct rules, closed a public comment period on the proposal on May 21; most submissions came from opposing prosecutors in jurisdictions including Norfolk, Chesapeake, Suffolk, Staunton and Lauden counties.

The Virginia Association of Commonwealth's Attorneys also strongly argued against the change, saying that production of all evidence should fulfill prosecutors' ethical duties.

Moreover, the new comment would place new demands on "already over-stressed" prosecutors to ferret out every possible exculpatory use of evidence and exacerbate a chronic prosecutor shortage in the state, the association contended.

"The prosecutor may not be aware of the defense theory of the case, may not realize the significance of some evidence to that theory and will not highlight that evidence," said the group's president, Roy Evans, a prosecutor in Smyth County.

A smattering of Virginia defense attorneys have weighed in with support, saying the comment would build on existing Brady and Rule 3.8 obligations and help level the playing field, including cases involving huge amounts of evidence in which favorable evidence can be obscured.

"Unlike the constitutional duty that requires the prosecutor to learn of exculpatory evidence and impugns to the prosecution that which is known by law enforcement, this simply requires the prosecutor to pass on known information," said David Johnson of the Virginia Indigent Defense Commission, which supports the rule change.

Green said it was notable that the DOJ's advisory office on professional responsibility had "thrown its heft" behind the effort to head off the Virginia proposal.

"The rule is effectively saying to prosecutors 'You have to read your files and know everything that's in there, and turn over what you know is exculpatory,'" he said. "If the opposing argument from prosecutors is that's too burdensome, I don't think that's a very sympathetic argument."

A Virginia bar spokesperson and a DOJ representative declined to comment. James McCauley, a Virginia bar ethics counsel, did not respond to requests for comment.

--Editing by Brian Baresch.

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