Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery

63 Pages Posted: 5 Feb 2008 Last revised: 3 Oct 2012

See all articles by Robert P. Mosteller

Robert P. Mosteller

University of North Carolina School of Law


Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. Maryland that requires the disclosure of exculpatory evidence and the related ethics rule produced no evidence in the Duke lacrosse case or the other two prosecutions. Indeed, these cases show that it is exceedingly difficult for a prosecutor committed to his or her case and/or who sincerely believes in the guilt of the accused to recognize the exculpatory nature of evidence and disclose it. The reversal of nine North Carolina capital cases in the last decade, since open-file discovery was mandated for capital post-conviction litigation, demonstrates the ineffectiveness of solely relying on voluntary Brady disclosures, even when the consequence of an unjust conviction would be execution.

The article begins with an examination of the reversal of Alan Gell's capital conviction on Brady grounds. Evidence of the gross miscarriage of justice in that case came to light as a result of the open-file discovery law. Gell's resounding exoneration on retrial and the tepid discipline handed out by the State Bar to his prosecutors produced public outrage. It led to both discovery and ethics reform. Critically, the legislature enacted an open-file discovery law for all felony cases at trial, which moved North Carolina immediately from a traditional, restrictive approach in criminal discovery to one of the most liberal systems in the nation that provides almost total access to both prosecution and investigative files.

The death penalty prosecution and conviction of Jonathan Hoffman is the second case examined. It is another of the cases reversed on Brady grounds after prosecution files were opened to defense scrutiny in capital cases on post-conviction review. Disciplinary charges were brought against the prosecutors in the Hoffman case as well, but they floundered for technical reasons. That failure further demonstrates the limits of Brady because of the inherent difficulties of disciplining prosecutors for violating ethical rules based on its mandate.

Together, the important discovery reform that Gell's exoneration generated and the earlier, largely unsuccessful disciplinary actions cleared the road to the exoneration of the Duke lacrosse players and set the stage for Nifong's disbarment. The genius of the new discovery law is that it blows right past the difficulties of requiring the person charged with prosecuting the accused to disclose exculpatory evidence. It opens to defense scrutiny largely everything, which includes evidence that the defense may see as potentially exculpatory. That is a simple but powerful insight illustrated in these cases. Although specifically examining the experience of only one state, the problems with disclosure of exculpatory evidence are national in scope and effectively unresolved in most jurisdictions, and a remedy is critically important to the burgeoning innocence movement.

Suggested Citation

Mosteller, Robert P., Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery. George Mason Law Review, Vol. 15, No. 2, 2008, Duke Law School Legal Studies Paper No. 182, Available at SSRN: https://ssrn.com/abstract=1088463

Robert P. Mosteller (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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