Legal Practice Tip: Prosecutor’s Ethical Duty to Disclose Broader than Brady

The Tennessee Board of Professional Responsibility issued an ethics opinion explaining that a prosecuting attorney’s ethical duty to disclose favorable information to the defense is broader than that required under federal constitutional law.“Tennessee Rule of Professional Conduct 3.8(d)" is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor's legal disclosure obligations.  This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.  Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or falls within RPC 3.8( d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Formal Ethics Opinion 2017-F-163.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.
          | TBA Law Blog