Defense-Friendly Evidence Rule Riles Va. Prosecutors

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Professor Bruce Green was quoted in a Law360 article about the controversy surrounding a proposed amendment to a Virginia state ethics rule concerning evidence disclosure.

The U.S. Department of Justice is lining up with state prosecutors across Virginia to squash a novel ethics rule that would require them to highlight defense-friendly evidence in criminal case files.

The controversy over a proposed amendment to state Rule 3.8, which outlines the special duties of prosecutors, is focused on a scant few words prosecutors say will force them to do the work of opposing counsel and decide how each piece of evidence might benefit the defense — or face possible sanction.

On the other side, some members of the defense bar say a specific requirement for prosecutors to “identify” exculpatory evidence merely enforces existing duties and will discourage prosecutors from hiding defense-favorable material in discovery “dumps.”

But professional responsibility expert Bruce Green of Fordham Law School called the state bar’s proposal “innovative.”

“This rule is trying to deal with the problem of a prosecutor who knows there is something important in their file and wants to bury it among a lot of other evidence,” he said. “This would mean the prosecutor would have to specifically point out the favorable evidence and identify it as exculpatory, and that is an additional step.”

“Unlike the constitutional duty that requires the prosecutor to learn of exculpatory evidence and impugns to the prosecution that which is known by law enforcement, this simply requires the prosecutor to pass on known information,” said David Johnson of the Virginia Indigent Defense Commission, which supports the rule change.

Green said it was notable that the DOJ’s advisory office on professional responsibility had “thrown its heft” behind the effort to head off the Virginia proposal.

“The rule is effectively saying to prosecutors ‘You have to read your files and know everything that’s in there, and turn over what you know is exculpatory,'” he said. “If the opposing argument from prosecutors is that’s too burdensome, I don’t think that’s a very sympathetic argument.”

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