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.
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Haslam Comments on Issues Surrounding Finalists for TBI Director Position

Gov. Bill Haslam says he understands issues that have been raised about the candidates he is considering to lead the Tennessee Bureau of Investigation and will be mindful of these concerns when personally interviewing each, The Chattanooga Times Free Press reports. Among the nominees are Acting TBI Director Jason Locke; former Bradley County Sheriff Tim Gobble and Knoxville Police Chief David Rausch.
Some of the issues raised regarding the nominees include a lawsuit brought against Gobble alleging violation of first amendment rights by his former finance director, the hiring of Locke’s son — a recent college graduate with no law enforcement experience — by the agency, sparking concerns of nepotism, and "professional courtesy" calls made by Rausch to then University of Tennessee head football coach Butch Jones about a rape investigation involving two players. Each candidate was approved by the independent TBI Nominating Commission for Haslam and will be subject to vetting by a retired FBI special agent to conduct background investigations on the nominees.
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