CHICAGO, Nov. 2, 2011 – The American Bar Association is asking the Supreme Court in Smith v. Cain, scheduled for oral arguments on Nov. 8, to reaffirm that a prosecutor’s ethical obligations to disclose exculpatory and mitigating evidence before trial are broader than the constitutional standards established for post-trial review of non-disclosure claims under the court’s 1963 Brady v. Maryland jurisprudence.

In a case involving allegations of substantial prosecutorial non-disclosures, the ABA’s amicus brief acknowledges that the court must consider these claims post-trial under the Brady standards. However, the ABA, quoting Cone v. Bell (2009), urges the justices to again recognize that a prosecutor’s pretrial disclosure obligations “may arise more broadly under a prosecutor’s ethical or statutory obligations,” as established by the prosecutor’s state attorney regulatory body.

The brief cites three ABA authorities in support of its argument:

• ABA Model Rule of Professional Conduct 3.8(d), which provides for disclosure regardless of materiality. Louisiana and 48 other states have adopted ethics rules that include a provision identical or similar to Model Rule 3.8(d). “Indeed, to the extent Louisiana has modified Rule 3.8(d), it has done so … only to impose more rigorous disclosure obligations on prosecutors,” according to the amicus brief, which includes an appendix listing the prosecutorial disclosure obligations of each state.
• Formal [Ethics] Opinion 09-454, “Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense,” which discusses the absence of a materiality requirement in Rule 3.8(d). The full text of this opinion is included as an appendix to the amicus brief.
• The ABA Criminal Justice Standards, which are based on consensus views of criminal law professionals. The standards provide for disclosure without regard to materiality.

The brief is available here.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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