High Court Misses Opportunity to Discuss Ethical Obligations of Prosecutors


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


For reasons we discussed in a previous post, the U.S. Supreme Court had an opportunity in Smith v. Cain to discuss the ethical discovery obligations of both federal and state prosecutors—an idea strongly suggested by the American Bar Association in their amicus brief filed in the case. While the issue before the Court was whether Louisiana prosecutors had committed a Brady violation in a murder case by suppressing favorable evidence, the ABA had encouraged the Justices to use the case to emphasize that a prosecutor’s pre-trial ethical obligations to disclose exculpatory and mitigating evidence under Rule 3.8(d) of the Model Rules of Professional Conduct, 3.09(d) in the Texas Disciplinary Rules of Professional Conduct, are broader and distinct from the post-conviction Brady analysis. In its amicus curiae brief, the ABA framed the issue as follows:


“The case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards.


Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”


Although the Court reversed the conviction in Smith v. Cain, the Justices did not even mention a prosecutor’s pre-trial ethical obligations to disclose Brady material. It was an affront to the ABA. But we suspect, as we long have, that the Supreme Court is determined to provide as much ethical and constitutional cover for “rogue prosecutors” as possible. Put simply, the Court wants the status quo to remain in place; namely, that the worst consequence a prosecutor can expect for committing a Brady violation is a slap-on-the-wrist reversal of the conviction involved, as it did in Smith v. Cain.


While the reversal of the illegally obtained conviction in Smith v. Cain is welcomed, it is terribly disappointing that the court did not step up to the plate and address the pre-trial ethical disclosure obligation. But that should not rain on the duty of criminal defense attorneys at the federal level to submit detailed, comprehensive letters of discovery to the Government in all criminal cases.


The discovery letter should include a full recitation of Rule 3.8 which sets forth the “special responsibilities of a prosecutor.” A good lead to follow is the standard letter used by the Public Defender Service for the District of Columbia which supports its discovery requests with substantive case law. A discovery letter should outline three specific areas of Brady disclosure: 1) duty to disclose; 2) the materiality/impeachment evidence standards; and 3) what information is subject disclosure. The following is a non-inclusive list of some the legal issues a prosecutor must consider in complying with discovery demands:




The Supreme Court in Brady v. Maryland held that Fifth and Fourteenth Amendments impose a duty on the Government to disclose to the defendant certain, specific types of information. Brady defined this information as evidence “material” to either guilt or punishment. The Supreme Court in Bagley v. United States defined “material,” saying evidence is material if there is a “reasonable probability” that its disclosure would have changed the outcome of the verdict. Bagley added that “a reasonable probability is a probability sufficient to undermine the confidence in the outcome” of a criminal trial. The Supreme Court in Kyles v. Whitley added that all “favorable evidence is material …”


Inherent in the Brady duty to disclose is the requirement that the disclosure be made in a timely manner. For example, the Second Circuit, in United States v. Matthews, found a Rule 16 violation because the government attorney withheld a letter written by the defendant instead of disclosing it within a timely manner.


Thus, a discovery letter should include the warning that if the Brady material is not disclosed in a timely manner, a motion for a continuance and a request for sanctions will be filed with the court.




The United States District Court for the Central District of California in United States v. Sudikoffsaid it was not appropriate for federal prosecutors to use the post-conviction Bagley “materiality” analysis during pre-trial discovery. The federal district court in the Eastern District of Wisconsin in United States v. Carter specifically held: “[I]n the pre-trial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.”


The Fourth Circuit of Appeals agrees. In Monroe v. Angelone, the conservative appeals court said that while some Brady material that comes to light post-trial may not constitute a violation because of redundancy, that does not “excuse discovery obligations” pretrial. While “materiality” may exist as a defense in the post-trial setting, this is not a license to make “materiality” determinations pre-trial. As the court in Sudikoff explained:


“The [materiality] standard is only appropriate, and thus applicable, in the context of appellate review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material … This analysis obviously cannot be applied by a trial court facing a pretrial discovery request.”


The Lewis court put it this way: “[T]he materiality prong presumes that the trial has already occurred and requires the court to determine whether the result could have been different had the evidence been disclosed. But a court deciding whether materiality should be disclosed prior to trial does not have the luxury of reviewing the trial record.”


Most federal courts strongly believe that prosecutors should not make pre-trial discovery decisions regarding materiality of evidence “at the end of the [same] telescope” used by an appellate court post-trial.

Finally, the discovery letter should include the caution that, as stated in Virgin Islands v. Fahie, prosecutorial “bad faith” is “probative to materiality” as well as relevant to determining a remedy.




The Supreme Court in Banks v. Dretke
illustrated the kind of evidence so clearly subject to disclosure. In Banks, state prosecutors, in a capital murder case, did not disclose to the defense that a key witness for the prosecution was a paid government informant and that another witness had been coached by prosecutors. The court stated, “one can hardly be confident that [defendant] received a fair trial, given the jury’s ignorance of the withheld evidence.”


The Fourth Circuit in Monroe v. Angelone found a Brady violation because the cumulative effect of plea deals and inconsistent statements could have undermined the prosecution’s proof of premeditation and malice in first degree murder case.


The Second Circuit in Disimone v. Phillips found a Brady violation because exculpatory statement would have allowed the defense to investigate another party’s involvement.


Likewise, the Fifth Circuit in United States v. Sipe found a Brady violation because the cumulative effect of undisclosed statement, criminal history of witness, and benefit to testifying aliens undermined credibility of a key witness.


The Ninth Circuit in United States v. Santiago found a Brady violation because prosecutor had knowledge of and access to inmate files, including the defendant’s files held by Bureau of Prisons.


The Second Circuit in Leka v. Portuondofound a Brady violation because off-duty policeman’s undisclosed observations would have contradicted testimony of other witnesses.




Beyond its duty to disclose exculpatory evidence, the Government must disclose any deals, arrangements, promises, and incentives given to a prosecution witness whose testimony is important to the defense because it is relevant for impeachment purposes. For example:


The Third Circuit in United States v. Pelullo found a Brady violation because an FBI agent’s undisclosed notes and FBI surveillance tapes could have been used to impeach government witness whose credibility was central to case.


The District of Columbia in United States v. Cuffie found a Brady violation because undisclosed evidence of witness’s prior perjury could have impeached witness, even though the witness had been impeached by a cocaine addiction, cooperation with prosecution, incentives to lie, and violation of oath as police officer.


The Sixth Circuit in O’Hara v. Brigano found a Brady violation because undisclosed written statement by victim could have been used to impeach victim’s testimony.


Likewise, the Sixth Circuit Joseph v. Coyle found a Brady violation because witnesses’ undisclosed testimony transcripts, notes on witness interviews, and immunity agreement would have impeached prosecution’s crucial witness.


The Fifth Circuit in United States v. Miller found Brady violation because undisclosed referral letter could have been used to impeach witness at trial.




The courts have cut a broad, unmistakable swath about what information the Government should disclose about its witnesses. Below is a list:


The Ninth Circuit in Singh v, Prunty found a Brady violation because of “favorable deal” given to a star witness.


Likewise, the Ninth Circuit in United States v. Strifler found a Brady violation when, after request by defendant, Government does not disclose information in probation file relevant to witness’s credibility on ground that it was privileged.

The First Circuit in Mastracchio v. Vosefound Brady violation because knowledge of Witness payments or favors made by the Witness Protection team is discoverable.


The Seventh Circuit in Crivens v. Roth found Brady violation because failure to disclose crimes committed by Government witness is Brady even when witness used aliases.


Likewise, the Seventh Circuit in United States v. Boydfound Brady violation for failure to disclose drug use and dealing by Government witness and “continuous stream of unlawful favors” including phone privileges, presents, and special visits.


The Sixth Circuit in Schledwitz v. United States found Brady violation because Government witness portrayed as neutral and disinterested expert had actually been investigating defendant for years.


The District of Columbia in United States v. Brooks found Brady violation if a specific request is made by defendant and Government does not search records of police officer/witnesses.


The Fifth Circuit in Guerra v. Johnson found Brady violation for failure to disclose police intimidation of key witnesses and information regarding suspect seen carrying murder weapon minutes after shooting.




The most significant discoverable material is undoubtedly information pointing to someone other than the defendant as the perpetrator of the crime—known as “other suspect information.” The Supreme Court in Brady fully established this constitutional violation because state prosecutors in that case failed to turn over statement by co-defendant that he had planned the killing and that he alone had actually performed the killing


The Eighth Circuit White v. Helling found a Brady violation in a 27 year old murder case because the Government did not disclose that its chief eyewitness had originally identified someone else and identified the defendant only after several meetings with the police.


The Fourth Circuit in Spicer v. Roxbury found a Brady violation because prosecutors did not disclose witness’s prior inconsistent statement that he did not see the defendant.

The Tenth Circuit in Banks v. Reynolds found a Brady violation because prosecutors did not disclose another individual or individuals had been arrested for the same charge.


The Ninth Circuit in United States v. Service Deli, Inc. found a Brady violation because prosecutors failed to turn over original notes from witness interview that contained three pieces of impeachment information which showed the witness’s statement had changed—a change that may have been induced by threats of imprisonment and witness’s claim that he had suffered a stroke.


The Texas Court of Criminal Appeals in Ex parte Mowbray found a Brady violation because prosecutors failed to disclose exculpatory expert report.




Cathy A. Brook, Executive Director for the Federal Defender Program for the Northern District of Illinois presented a paper on “Federal Criminal Discovery” at a 2010 Orientation Seminar for Assistant Federal Defenders. This paper is an excellent review of the kinds of discovery mandated under Fed.R.Crim.P. 16—the primary statutory source for Brady discovery as pointed out by the court in United States v. Griggs. The Rule, as noted by the Fourth Circuit in United States v. Jeffers, is a “mandatory” direction to the Government to inspect and copy certain information, but only upon defense request.


Rule 16(a)(1)(A) requires, upon defense request, that the Government disclose defendant’s relevant oral statement made in response to a person the defendant knew was a government agent if the Government intends to use the statement at trial. The following rules have emerged under this section: 1) the substance of any relevant oral statements not reduced to writing where statements were made by defendant to a person defendant knew to be a Government agent; 2) statement must have been made in response to interrogation before or after arrest; 3) Government must intend to “use” statement; 4) defendant generally not entitled to his/her oral statements made to a third person which were later repeated to Government agents, unless a written record is contemplated at time defendant’s oral statements are made; 5) written statements made by the defendant to a third person who gave them to a Government agent who put them in a report; 6) all grand jury testimony of the defendant, “which relates to the offense charged”; 7) defendant is generally only entitled to co-conspirator or co-defendant statements which are admissible against defendant under F.R.E. 801(d)(2)(E) if the Government does not intend to call the co-conspirator as a witness; and 8) disclosure of co-defendant’s statements is discretionary, but refusal to order will not be error unless specific motion for disclosure is made.


Rule 16(a)(1)(B) rules concerning discovery of the written or recorded statement.

Subsection (B)(i) requires Government to furnish the defense with all relevant written or recorded statements made by the defendant which are in the custody or control of the Government and which are known to the Government or by the exercise of due diligence may become known to the Government.

This following obligations and principles have emerged under this subsection: 1) standard does not create high threshold—production has become practically a matter or right; 2) this section include draft transcripts of tape recordings in addition to the tapes themselves; 3) due diligence requires Government to disclose statements made to local police officers; 4) includes relevant statements from other cases; 5) includes taped telephone conversations in prison; 6) includes prior statements on INS forms; 7) includes law enforcement notes taken during and after defendant interviews; and 8) test seems to be whether other agencies are “closely aligned with prosecution.”


Subsection (B)(ii) requires Government to furnish to the defense: 1) written records containing the substance of relevant oral statements made by defendant to a person defendant knew to be a government agent in response to interrogation, before and after arrest.


Rule 16(a)(1)(C) pertains to the “organizational” defendant statements which state that, upon request, the Government must disclose a organizational defendant’s written or oral statements which meet the requirements of (a)(1)(A) and (a)(1)(B) and which were made by a person who could legally bind the defendant.


Rule 16(a)(1)(D) contains the rules regarding disclosure of defendant’s prior record. This subsection 1) permits discovery of defendant’s “rap” sheet, requested from FBI, Probation Office, and state.


Rule 16(a)(1)(E) contains the rules regarding disclosure of documents and objects. This subsection provides that the defense is entitled to and requires: 1) all documents material to defense; 2) documents Government intends to introduce in its case-in-chief; 3) obtain originals of fingerprints and handwriting exemplars; 4) request all lineup photos, photographic show-ups, and reports stating results of such and the circumstances surrounding them in preparation for possible motions to suppress; 5) request drug dog training and handling records; 6) request information available to Government showing similar activities by person other than the defendant, such as bank robberies; and 7) look for cases where shoe is on other foot.


Rule 16(a)(1)(F) contains the rules regarding disclosure of examinations and tests. Defense entitled to results or reports of tests and exams which are in the possession or control of the Government and are known to the Government or by the exercise of due diligence may become known to the government and which: 1) are material to the defense or the Government intends to introduce in its case-in-chief; 2) requires exercise of due diligence; 3) request results of all lab tests; 4) request result of handwriting, hair, fingernail, voice, etc.

comparisons; 5) request samples on which to conduct independent tests;  6) not sufficient for Government to argue materials were released to prior attorney; 7) narcotic dog’s training records, standards, etc. are discoverable; and 8) courts are split on whether defendants are entitled to underlying data or lab protocols.

Rule 16(a)(1)(G) contains the rules regarding the disclosure of experts. This subsection requires Government to furnish upon defendant’s request written summary of expert testimony Government intends to use during case-in-chief, including: 1) notice of expert’s qualifications, necessary to determine whether witness is actually an expert; 2) disclosure of summary of expected testimony and list of cases in which witness has testified; and 3) disclosure of summary of basis for expert’s opinion, whether or not expert prepares a report. This subsection particularly requires timely disclosure.



The ABA Standards for Criminal Justice, Prosecution Function, § 3-6-2(b) (3d Ed 1993) Information Relevant to Sentencing provides: “The prosecutor should disclose to the defense and to the court at or prior to the sentencing all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”


A discovery letter should be as comprehensive, clear and concise as possible. It may, along with discovery and Brady motions, have to be used on appeal. Smith v. Cain underscores that the only remedy for a defendant who has been the victim of a Brady violation is reversal of conviction, which may come years after the defendant has been convicted. A comprehensive discovery letter highlighting all of a prosecutor’s pre-trial ethical obligation and post-trial “materiality” obligations may deter some prosecutors contemplating withholding key favorable evidence. But this process begins with that discovery letter.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair