A little noted decision from the District of Columbia Court of Appeals has held that the rule governing prosecutors’ ethical responsibility to disclose exculpatory evidence is significantly broader than the legal standard enshrined in the Brady line of cases.
In In Re Andrew J. Kline, the court last month held that “Rule 3.8 (e) [of the DC Rules of Professional Conduct] requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.”
While the decision of the court (not to be confused with the US Court of Appeals for the Federal Circuit) interprets only those rules pertaining to the conduct of attorneys in the District, that covers a great many federal prosecutors, including the respondent in this case, Andrew Kline. Together with the opinion’s thorough analysis of the incoherence of the “materiality” standard for pre-trial disclosure decisions, it makes the decision a significant one in clarifying the difference between the ethical and legal obligations prosecutors are under to share exculpatory evidence with defense counsel.
The bar complaint against Kline stemmed from a felony assault case in 2002. In preparing for trial, Kline interviewed a police officer, who told Kline that the victim, while at the hospital, had first stated that “he did not know who had shot him.” Kline never disclosed his notes on his discussion with the officer, and at trial, the victim testified that he had seen his assailant, whom he identified as the defendant. Two other eyewitnesses also testified against the defendant.
In recommending a six-month bar suspension for Kline, the D.C. Board on Professional Responsibility found he had violated Rule 3.8 (e), modeled on the ABA’s Standards for Criminal Justice:
The prosecutor in a criminal case shall not…[i]ntentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused…
Kline appealed, arguing “his ethical duties are coextensive with the duties imposed under Brady,” specifically the “material-to-outcome” standard, and that, therefore, “a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial.” Here his argument apparently being that the two other eyewitnesses were sufficient to convict.
The court firmly rejected this position, in language it is worth quoting at length:
[E]vidence material to the preparation of the defense is often confused with ‘material to the outcome of the trial,’ i.e., prejudice. While the Supreme Court in Brady promulgated a definition of exculpatory material for disclosure purposes—evidence that is “material to guilt or innocence”—it was not until Bagley that the term “material” was defined as prejudice sufficient to support a belief that had the information been disclosed the outcome of the trial likely would have been different.
Further, as the Supreme Court recognized in Kyles, ‘[t]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.’ The Supreme Court reiterated that basic tenet in Cone, noting that ‘[a]lthough the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.’ [emphasis added].
Retrospective analysis, while it necessarily comports with appellate review, is wholly inapplicable in pretrial prospective determinations…It is impossible for a trial court at the pretrial stage to require the defendant to satisfy the test of materiality normally associated with a retrospective Brady–Agurs inquiry, namely, materiality to outcome. On the premise that there can be a pretrial ruling under Brady, this abandonment of the material-to-outcome test is necessary because there can be no objective, ad hoc way to evaluate before trial whether evidence or information will be material to the outcome. No one has that gift of prophecy. To argue that the court can apply a material-to-outcome test before trial is to argue a contradiction….
For that reason, it is important not to use Brady as a canon of prosecutorial ethics…Thus, to the extent the Rule 3.8 commentary suggests a materiality test, we reject it. We see no logical reason to base our interpretation about the scope of a prosecutor’s ethical duties on an ad hoc, after the fact, case by case review of particular criminal convictions.
All this said, the D.C. Court of Appeals found that, while Kline had clearly violated the rule, his understanding that there was in fact a materiality standard was “not unreasonable,” owing to the court’s own prior ambiguous commentary on the rule, which has been cited by other jurisdictions in adopting a narrower interpretation of ethical standards. Thus they declined to impose the Board’s recommendation of a six month suspension.
In In Re Andrew J. Kline, however, the court goes to lengths to distance itself from its own previous commentary, and clearly establishes that:
Rule 3.8 (e) requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.
Unsurprisingly, the U.S. Attorney’s Office in Washington, which had supported the more limited obligation, says it is reviewing the case for possible appeal.