Prosecutors’ Ethical Duty of Disclosure: In Memory of Fred Zacharias

Bruce A. Green

Fordham University School of Law

San Diego Law Review, Forthcoming
Fordham Law Legal Studies Research Paper No. 1783864

ABA Model Rule 3.8(d) establishes an ethical duty on the part of criminal prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” A 2009 opinion issued by the ABA’s ethics committee concluded that the rule does not simply restate prosecutors’ disclosure obligation under Brady v. Maryland, but requires prosecutors to disclose favorable evidence as soon as reasonably practicable without regard to the materiality of the information. In contrast, the Ohio Supreme Court held in 2010 that prosecutors’ ethical duty under Ohio’s version of Rule 3.8(d) was no more extensive than their legal obligation. This essay, written in memory of Fred Zacharias and drawing on his scholarship, examines these conflicting visions of prosecutors’ ethical duty. It argues that the two bodies had differing conceptions of the rule – to adopt Professor Zacharias’s terminology – as either a rule of role or an integrity rule. The essay concludes that the different visions may each be justified, but that even so, the inconsistency is not ideal and has implications for the processes by which ethics rules are drafted and adopted.

Number of Pages in PDF File: 37

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Date posted: March 14, 2011  

Suggested Citation

Green, Bruce A., Prosecutors’ Ethical Duty of Disclosure: In Memory of Fred Zacharias. San Diego Law Review, Forthcoming; Fordham Law Legal Studies Research Paper No. 1783864. Available at SSRN: http://ssrn.com/abstract=1783864

Contact Information

Bruce A. Green (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)
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