Pursuant to Brady and Giglio, a prosecutor has an affirmative obligation to turn over all testimony and documents that are exculpatory or tend to impeach the credibility of a prosecution witness.
In layman's terms, a prosecutor has a duty to turn over all evidence of innocence to the defense, and failing to do so is a violation of the law and ethical rules.
I should note this includes expert reports, especially when the underlying evidence is of the "data dump" variety.
Unfortunately, it is extremely common for prosecutors to try to skirt this rule. Much like police protect one another, employees of some district attorneys are expected to cover these violations as an almost routine matter.
As prosecutors enjoy almost absolute judicial immunity, the regulations in the Rules of Professional Conduct are all that provide for sanctions in case of a violation. This measure has proved rather toothless as many state ethics boards, often composed of former prosecutors, are reluctant to issue sanctions.
Even in the most egregious violation of the Brady rule that I have seen, which occurred during the Duke lacrosse team case when ex-DA Nifong hid an exculpatory DNA report, the state ethics bar did not issue sanctions for that violation.
Credentials: I am not a lawyer, but I have worked as a paralegal for several years and captained a mock trial team for both high school and college. I have written documents that have been submitted in the courts after approval by attorneys, some specifically on this point.
Should there not be some mandate that state ethics boards be made up of approximately 50% prosecutorial and 50% defense attorneys? Ethics boards should exhibit the same adversarial process as the courts.
Sure, but it would be difficult to enforce in practice. Many former prosecutors go on to become defense attorneys, plaintiff's attorneys, etc. However, they retain many of the biases they picked up while working in the prosecutor's office. Thus, composing a neutral ethics board would be very difficult.
They do use a form of adversarial process, with attorneys for both the complainant and the state presenting their sides of the case. But with a biased panel, little justice is served.
From my perspective, many attorneys place too much trust in the notion that a lawyer is a trusted "officer of the court." Because most attorneys believe themselves to be capable of neutrality, they trust others to do the same. In reality, everybody carries their bias with them.
The most effective solution is the one we have painstakingly developed over 900 years of common law jurisprudence: neutral juries composed of citizens chosen by lot.
In layman's terms, a prosecutor has a duty to turn over all evidence of innocence to the defense, and failing to do so is a violation of the law and ethical rules.
I should note this includes expert reports, especially when the underlying evidence is of the "data dump" variety.
Unfortunately, it is extremely common for prosecutors to try to skirt this rule. Much like police protect one another, employees of some district attorneys are expected to cover these violations as an almost routine matter.
As prosecutors enjoy almost absolute judicial immunity, the regulations in the Rules of Professional Conduct are all that provide for sanctions in case of a violation. This measure has proved rather toothless as many state ethics boards, often composed of former prosecutors, are reluctant to issue sanctions.
Even in the most egregious violation of the Brady rule that I have seen, which occurred during the Duke lacrosse team case when ex-DA Nifong hid an exculpatory DNA report, the state ethics bar did not issue sanctions for that violation.
Credentials: I am not a lawyer, but I have worked as a paralegal for several years and captained a mock trial team for both high school and college. I have written documents that have been submitted in the courts after approval by attorneys, some specifically on this point.