A prosecutor may have to make an earlier disclosure of exculpatory evidence under Virginia ethics rules than is required under the Brady standard, under a new draft legal ethics opinion.
The Virginia State Bar is seeking comment on draft LEO 1862, which covers a controversial topic for criminal defense lawyers: What is a “timely disclosure” of exculpatory evidence by a prosecutor?
LEO 1862 posits a hypothetical in which a prosecutor knows before a preliminary hearing about exculpatory evidence – witness statements accusing someone else of the crime — as well as the death of the lead prosecution witness, an eyewitness to events. There’s an outstanding offer to let the defendant plead to a lesser offense and waive the preliminary hearing.
Does the prosecutor have to let the defendant know during plea negotiations about information that weakens the case against the defendant, the LEO asks.
According to the advisory LEO, the duty of timely disclosure of exculpatory evidence requires earlier disclosure than is required under the Brady standard, which is necessarily retrospective.
The committee said it could not provide a definitive answer to the hypothetical question on whether a prosecutor must immediately turn over exculpatory evidence. It did, however, state that a prosecutor may not withhold the evidence merely because his legal obligations under Brady have not been triggered. The loss of an important prosecution witness may decrease a defendant’s chances of conviction, but it is clearly not “evidence” and disclosure is not required under Rule 3.8(d), according to the committee.
A copy of the Legal Ethics Committee’s draft LEO 1862 and directions for filing comments by May 4 are here.
By Deborah Elkins