Different Roles of the Lawyer · 4-10% of the exam
19.1.2Exculpatory and Mitigating Evidence (Rule 3.8(d))
Quick review — Exculpatory and mitigating evidence (Rule 3.8(d)) (taught fully in Chapter 15)
Four points on what has to be turned over, and the last one defines timely.
- All evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense must be delivered to the defense on a timely basis; the prosecutor's view of weight or admissibility is irrelevant.
- Brady is unconditional; personal belief in guilt doesn't authorize withholding, and defense counsel — not the prosecutor — decides what to do with the evidence.
- At sentencing, mitigating material not covered by privilege goes both to the defense and to the tribunal; the sole carve-out is a protective order from the tribunal.
- "Timely" means as soon as reasonably practicable, so the defense can make meaningful use of the evidence in deciding such things as whether to plead guilty and how to conduct its investigation (ABA Formal Opinion 09-454).
Questions · 1
Q 01ch19-e03
Question 1 of 1 · Rule 3.8(d)
Prosecutor tried Defendant for an armed robbery of a hardware store. Three weeks before trial an analyst at the state crime laboratory told Prosecutor that a partial palm print lifted from the store counter did not match Defendant and matched no one in the database. Defense counsel had never asked for print results. Prosecutor read the analyst's memorandum, decided the print was smudged, was probably left by a customer, and was unlikely to move any juror, and said nothing about it. Defendant was convicted on eyewitness testimony. Is Prosecutor subject to discipline?
Keys 1 to 4 choose.