Monday, November 4, 2013

Proffer Disclosure and Prosecutorial Ethics

Ever sat in the U.S. Attorney's Office reading a proffer that you couldn't take home to study?  Ever done so three days before trial?  Ever thought that there might be something, just a little something, wrong with that?  Reasonable people agree with you.

In a recent law journal article regarding prosecutorial ethics, the particular reasonable person that agrees with you: (1) has a firm grasp and and articulate sense of the ethical duties of prosecutors, and (2) works for the Kansas Disciplinary Administrator's Office.

In her law journal article entitled "Prosecutors' Discovery and Disclosure Requirements After Lafler v. Cooper", Kim Knoll unpacks the Supreme Court's constitutionalization of the plea bargaining process as it impacts discovery requirements.  The upshot of her most fabulous analysis is that a prosecutor's duties to disclose are governed not just by their statutory duties, but by their (wut?) ethical requirements.

An important component of this inquiry is the realization that proof of an ethical lapse does not require evidence of prejudice to the defendant.  While habeas claims often founder on the shoals of proof that the defendant suffered prejudice from the prosecutor's failure to disclose, no such requirement exists in the ethical context.  There, wrong is wrong.

The Supreme Court's recent decision in Lafler also moves the chains by imbuing the plea bargaining process with constitutional protections previously unrecognized.  As Kim observes,

"the Lafler decision has opened the door to a whole new level of scrutiny of prosecutorial disclosure decisions.  It is reasonable to interpret ABA Model Rule 3.8(d) to require disclosure of all types of information before disclosure is constitutionally or statutorily required.  Disclosure must be made early enough for the information to be usable by the defense.  The analysis of whether the disclosure is timely will always be viewed through the eyes of the defendant.  A prosecutor who withholds material that will eventually require disclosure runs the risk of failing to make a timely disclosure."

The nuance and common sense of the entire article is difficult to succinctly summarize here.  While Lafler does not alter the prosecutor's obligations to disclose purely incriminatory evidence, it badly erodes the artificial distinction between exculpatory and impeachment evidence.  You, dear reader (both of you), would be well served to review the article in its entirety.

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