prudent prosecutor, The

Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C

Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.1

"The prudent prosecutor will resolve doubtful questions in favor of disclosure."2 I adopt the prudent prosecutor from United States v. Agurs, a Supreme Court case about the prosecutor's disclosure obligations. The case is short, but it encapsulates many of the features that complicate the standards of prosecutorial ethics. James Sewell was stabbed to death by Linda Agurs in a motel room. He was killed with one of the two knives he was carrying. He had deep stab wounds; she had "no cuts or bruises of any kind, except needle marks on her upper arm."3 Her defense was that when he attacked her she killed him in self-defense. She was convicted of second degree murder.

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Three months later, Agurs' lawyer filed a motion for a new trial. The motion was based on his discovery that Sewell had a prior criminal record (one guilty plea to assault and carrying a deadly weapon, and another to carrying a deadly weapon). "Apparently both weapons were knives."4 The prosecutor knew about the record before trial and did not disclose it. Defense counsel had not requested the evidence.

In its ruling, the Court distinguished Agurs' motion from appeals based on newly discovered evidence. In new evidence cases, the appellant faces the "severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal."6 In making this distinction, the Court referred to the prosecutor's special responsibility to justice. "If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State's possession as when it was found in a neutral source, there would be no special significance to the prosecutor's obligation to serve the cause of justice."7

For disclosure cases, the Court asserted that under Brady v. Maryland,8 prosecutors must disclose "obviously exculpatory" evidence even absent a request from the defendant. The Court, however, rejected the Court of Appeals' holding that "the prosecutor has a constitutional obligation to disclose any information that might affect the jury's verdict,"9 and opted for a reasonable doubt standard. "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial."10 Sewell's convictions were not "obviously exculpatory," nor did they establish reasonable doubt. Agurs' right to a fair trial was not denied. "[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial."11

In its ruling, the Court also noted that its review of disclosure focuses on the evidence, not the prosecutor. "Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."12 At the same time, it recognized the difficulty of characterization of the evidence in these cases:

violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.13

The dissent also invoked the "prosecutor's obligation to serve the cause of justice" - in order to criticize the high reasonable doubt standard set by the majority. "The burden thus imposed on the defendant is at least as 'severe' as, if not more 'severe' than, the burden he generally faces on a [newly discovered evidence case.] ... The `prosecutor's obligation to serve the cause of justice' is reduced to a status, to borrow the Court's words, of no special significance."14

Agurs illustrates many features of prosecutorial ethics. Both majority and dissent invoke the high professional ideal of the "prosecutor's obligation to serve the cause of justice," but disagree about its meaning. The Court identifies a mandatory rule for prosecutors under Brady: the requirement to turn over "obviously exculpatory" evidence, with or without a request from the defense attorney. The Court also acknowledges, however, that it is difficult to characterize evidence. The pre-trial perspective of the prosecutor may not match that of the trial or appellate judge. The Court is indifferent to the moral culpability of the prosecutor as long as the defendant receives a fair trial. There is a tension between the professional and constitutional standards. It is not clear that the constitutional standard sets a high professional standard or a clear disciplinary rule. Prosecutorial misconduct may remain undiscovered if defendants face a high threshold for challenging the fairness of the trial. Finally, as a last resort, the Court recommends prudence, which appears to set a standard higher than that required by the Constitution.

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prudent prosecutor, The

Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C

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