Grading the revised special prosecutor rule

Last October, the State Bar of California sent to the California Supreme Court, on an expedited basis, Proposed Rule 5-110, modeled on ABA Rule 3.8, Special Duties of a Prosecutor. That proposed rule was not without controversy at the committee and bar board levels, and garnered sharp criticism from the prosecutorial community over the "discovery" provision in the proposed rule.

As proposed, the discovery or disclosure obligation, denominated paragraph D, would have required prosecutors to disclose all evidence or information known to the prosecutor that the prosecutor knows or should know tends to negate the guilt of the accused or mitigate the offense or the potential sentence. While this may sound rather reasonable and unremarkable on its face, one of the discussion notes pertaining to D stated that "the disclosure obligations are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83" -- the bedrock constitutional disclosure requirement imposed on prosecutors to safeguard the right to a fair trial. Not discussed, but equally true, is that this disclosure obligation was not tethered to or limited by the Criminal Discovery Act found in Penal Code Section 1054 et seq., including its definition of "exculpatory evidence" (Section 1054.1) and the timing requirements of that law, which require discovery be made at least 30 days prior to trial (Section 1054.7). The American Bar Association had previously interpreted its own rule with identical language as not being subject to state discovery provisions or constitutional obligations. It was this aspect of the proposed rule that most riled the prosecution community.

On May 1, the Supreme Court issued an unanimous order accepting six of the eight elements of the proposed rule. However, the court refused to accept the discovery provision, (D), and paragraph (E), regarding the conditions under which a prosecutor could summon a lawyer to present evidence about a former client. As to the discovery provision, the court retained the core

language on the scope of the obligation -- evidence or information that "tends to negate the guilt of the accused, mitigate the offense or mitigate the sentence." However, the court proposed language to beef up the disclosure obligation to include "the duty to disclose information that casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely." This is essentially a duty to disclose (significant) "impeachment" evidence.

The court edited discussion paragraph [3] that explains paragraph D. The court retained the language that the disclosure obligation is not limited to evidence that is "material" under Brady. That is a conclusion at odds with a number of other state supreme courts -- Colorado, Ohio, Oklahoma and Wisconsin -- but consistent the highest courts in the District of Columbia and Nevada. However, that was not of significant import to prosecutors because the Criminal Discovery Act, as construed by the courts, requires disclosure of all "exculpatory evidence" regardless of Brady "materiality." People v. Cordova, 62 Cal. 4th 104 (2015).

Most significantly for prosecutors, the court added this sentence to the discussion note: "Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts." This passage does seem to tie or tether the disclosure obligation to both the substantive and procedural aspects of the Criminal Discovery Act and the "procedural" aspects of Brady, including such issues as timing and waiver -- precisely what the prosecution community had sought before the rules committee and Board of Trustees.

When the board took up the Supreme Court's suggestions in late May, there was strong objection from the defense bar to the "exculpatory evidence" language the Supreme Court suggested be added to the body of the rule. The defense bar argued that the wording "significant doubt" watered down and made subjective the scope of the prosecutor's disclosure obligation under the rule. Interestingly, the defense bar did not raise an objection to the "tether" language the court had proposed for the discussion note. Staff, however, did question whether the suggested "tether" language actually limited the rule as a measure of required disclosure for purposes of imposing professional discipline, and rather was meant only to prevent exploiting the rule's requirements in the courts -- a dubious proposition.

As to paragraph E -- the limit on summoning counsel to testify concerning a client -- the Supreme Court suggested considering making the rule applicable to all lawyers and changing language to make exceptions to the prohibition easier to establish.

The Board of Trustees has now responded to the Supreme Court. On July 13, the board sent back its proposed revisions to the rule in light of the Supreme Court's suggestions. The response was neither dramatic nor unexpected. The bar took the "exculpatory evidence" language out of the body of the rule and moved it, as an "example," to the discussion. The language does, however, limit the obligation to that impeaching evidence or information which relates to evidence upon which the prosecution intends to rely -- a significant limitation. Most significantly, the bar's proposal retains verbatim in the discussion the "tether" language proposed by the Supreme Court -- "Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts." As the rule can only be "applied" by the State Bar trial counsel, the State Bar Court and the Supreme Court in attorney discipline matters, it clearly limits the scope of the discovery obligation imposed on prosecutors, as a professional obligation as an attorney, to that which they are otherwise required by law to meet as prosecutors. Thus, both sides -- the defense bar and prosecutors -- came away with something.

The board did not address paragraph E at all, and that provision does not appear in any form in the proposed revision. Likely, the board took to heart the Supreme Court's suggestion that it consider making the provision applicable to all attorneys. As such, the provision would not logically fit within a rule designed specifically and solely for prosecutors.

An earlier version of this article incorrectly stated that the "bar took the 'exculpatory evidence' language out of the body of the rule and moved it, as an 'example,' to the discussion where it appears, sheared of the 'significant doubt' qualifier." In fact, the "significant doubt" language does appear in the discussion of the proposed rule change that was adopted by the Board of Trustees last week.