Rule 3.8, the Jencks Act, and How the ABA Created a Conflict Between Ethics and the Law on Prosecutorial Disclosure

A prosecutor's duty to disclose evidence favorable to the defense has proved to be one of the thorniest issues in criminal practice, no doubt in large part due to the complex, overlapping, and, at times, conflicting web of rules and standards governing that obligation: constitutional doctrine, statutory law, criminal procedure rules, and state ethics rules. The Standing Committee on Ethics and Professional Responsibility of the American Bar Association recently issued an expansive interpretation of Rule 3.8(d) of the Model Rules of Professional Conduct, which governs prosecutorial disclosure. As interpreted in Formal Opinion 09-454, Rule 3.8(d) is now in direct conflict with a federal statute governing disclosure of witness statements.This Article critiques the process by which this conflict was created. In essence, the ABA adopted positions that proponents of broader and earlier disclosure had sought-unsuccessfully-to attain through litigation, legislation, or rulemaking processes. These earlier reform efforts failed largely due to the need to avoid the very conflict with the Jencks Act that the Opinion has now created. The Article examines the implications of this conflict, and charts a path forward. Specifically, the Article argues that reforming federal criminal discovery practice requires going through-not around-one or more of the three institutions legitimately capable of harmonizing the rules regarding disclosure: The Judicial Conference of the United States, Congress, or the United States Supreme Court.INTRODUCTIONProsecutors and defense attorneys have long been at odds over the scope and timing of a prosecutor's obligation to turn over information favorable to the defendant in a criminal matter. A spate of high profile cases has pushed the issue into the public eye recently,1 but the battle over disclosure has been waged for decades.Ever since the landmark decision in Brady v. Maryland,2 proponents of broader, and earlier, disclosure have fought on several fronts to move the law in that direction. Most of these efforts have been resisted at the federal level by the United States Department of Justice (DOJ). Proponents of greater disclosure have had the greatest success in the arena of state ethics laws, which now apply to both state and federal prosecutors.3 Specifically, nearly every state has adopted a version of Rule 3.8(d) of the Model Rules of Professional Conduct,4 which imposes broader disclosure obligations on prosecutors than what is constitutionally required. Adoption of Rule 3.8(d) has not put the matter to rest, however; efforts to expand prosecutors' disclosure obligations have continued.The latest development in this ongoing battle over disclosure obligations is Formal Opinion 09-454 ("the Opinion"), issued by the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (ABA) ("ABA Ethics Committee") in July 2009, which interprets Rule 3.8(d).5 The Opinion follows on the heels of recent unsuccessful efforts waged by the defense bar to change Rule 16 of the Federal Rules of Criminal Procedure6 and other rules and laws governing disclosure. The Opinion is substantially pro-defense, and adopts many of the positions championed by proponents of these failed reform efforts, in ways that are contrary to the prevailing law.Specifically, Formal Opinion 09-454 states that a prosecutor must disclose all known information favorable to the defendant, even if it is only minimally relevant or believed to be highly unreliable.7 Under Rule 16 and the prevailing case law, only material information must be disclosed.8 The Opinion also declares that disclosure must be made "as soon as reasonably practical" once the information is known to the prosecutor;9 however, the prevailing legal standard is that disclosure is timely so long as it is made with enough time for the defense to use it at trial.10 Furthermore, according to the Opinion, a prosecutor must make the necessary disclosures prior to the defendant entering a guilty plea, and the defendant may not waive her right to the information as part of a plea deal. …