A clearer prosecutor rule would benefit all

The public is well aware of the reality of wrongful convictions. They occur in California, not just the rest of the country. They occur in death penalty and other murder cases, not just prosecutions for minor offenses. And while hundreds of wrongful convictions have been documented in murder cases, those are only the ones we know about.

It would strain credulity to deny that the documented cases are more than a small fraction of those where individuals have been wrongfully convicted of crimes they never committed or wrongfully sentenced to death because the jury never learned of evidence that would have persuaded them to spare the person’s life. Innocence Projects are overwhelmed with pleas for help and can only work on less than 1 percent of the cases that come to them. Government-funded post-conviction lawyers are generally provided only in death penalty cases. Unsurprisingly, there are no attorneys or resources to investigate wrongful conviction claims in virtually any case where an indigent person was convicted of a crime that did not result in the death penalty or a life sentence.

And wrongful convictions are usually set aside only when DNA evidence belatedly reveals that somebody else committed the crime or compelling evidence is presented that all of the crucial trial witnesses lied. But there is no DNA evidence at all in most felony prosecutions, not to mention virtually any misdemeanor cases.

What can our legal system do in an attempt to reduce the hundreds of wrongful convictions that occur in California? A modest step would be to impress upon prosecutors their existing duty to disclose any exculpatory information in their possession, regardless of whether they subjectively believe that the defendant is guilty or that the information is insignificant. After all, the failure to disclose exculpatory information has been identified as a major factor leading to wrongful convictions, existing California law requires prosecutors to disclose all exculpatory information before trial whether or not it is material, and as the late Justice Antonin Scalia scolded during the oral arguments in Smith v. Cain, 565 U.S. 73 (2012), prosecutors should “stop fighting as to whether [exculpatory evidence] should be turned over. Of course, it should…”

To be sure, there are hundreds of California prosecutors who honorably discharge their duty to disclose all exculpatory information in their possession. But just as sure is the reality that many prosecutors fail to do so. As famously decried by former Chief Judge Alex Kozinski of the 9th Circuit, there is an “epidemic” of Brady violations in California.

Simply put, existing law has not stopped prosecutors from failing to disclose exculpatory evidence. To their credit, the California Supreme Court, the Rules Revision Commission, and the State Bar Board of Trustees have recognized the problem and have conscientiously worked towards solving it by proposing Rule 5-110(d) be added to the Rules of Professional Conduct. As recounted in several articles previously published in the Daily Journal, the current version is the product of numerous revisions after extensive consideration by each of these bodies. The question is whether it will achieve the desired goal of deterring more prosecutors from violating their disclosure duties, or whether the current version needs further revision.

Respectfully, the current proposal suffers from two problems that will only encourage prosecutors to rationalize arguments for concealing exculpatory information from the defense. Both of these problems are contained in the second sentence of Discussion comment [3], which reads: “For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows* or reasonably should know* casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely.” (Emphasis added.)

First, if information casts doubt on prosecution evidence, then it is by definition “exculpatory,” whether or not that doubt is “significant.” The qualifier only invites prosecutors to withhold exculpatory information based on their subjective opinion that it is insignificant. The Rules Revision Commission received almost 200 public comments concerning the proposed rule; virtually all of them complained that “significant” should be deleted, and not a single comment attempted to explain why that limitation was appropriate.

Second, by excusing prosecutors from disclosing impeaching information if they don’t intend to present the affected evidence, the comment encourages prosecutors to take a narrow view of exculpatory information. Even if a prosecutor decides not to present a witness because of exculpatory information discrediting that witness’s story, that same information might affirmatively confirm the story of the defendant’s innocence. But since prosecutors are not privy to the client’s confidential statements to defense counsel, they may not realize how that “impeaching” information also exculpates the defendant, allowing them to conclude that they can conceal that information under the new rule.

Prosecutors, individuals accused of crimes, and all Californians would be better served by making it clear that a prosecutor’s ethical duty requires the disclosure of all exculpatory evidence and information, whether or not it is material, significant or only discredits evidence the prosecutor affirmatively intends to present at trial.