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Proposed | comment to Rule 3.8, Additional Responsibilities of a Prosecutor. Comments due November 30, 2018.

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed Comment [5] to Rule of Professional Conduct 3.8 “Additional Responsibilities of a Prosecutor.”

Comments to the Rules of Professional Conduct interpret and explain how the Rules are to be applied. Proposed Comment [5] explains what “disclosure” means as used in Rule 3.8(d), regarding a prosecutor’s duty to make known to the defense the existence of exculpatory evidence. The proposed Comment makes clear that the prosecutor’s obligation is triggered only once the existence of exculpatory evidence becomes known to the prosecutor, and that under certain circumstances, the prosecutor may need to do more than merely provide a copy of or access to the exculpatory evidence in order to fulfill the prosecutor’s duties under this Rule. The proposed Comment [5] provides:

[5] Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely disclose the evidence. What constitutes sufficient disclosure is dependent on the circumstances. In many cases, providing a copy of or access to the evidence or information is sufficient. In some circumstances, additional steps may be necessary to fulfill the disclosure obligation.

The proposed comment was developed with the input of a working group, composed of prosecutors, defense counsel, and members of the Committee; the resulting comment represents the consensus of that working group and was approved by the Committee on that basis.

Inspection and Comment

The proposed Comment may also be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed Comment can also be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed Comment with Karen A. Gould, Executive Director of the Virginia State Bar, not later than November 30, 2018. Comments may be submitted via email to publiccomment@vsb.org.

Proposed comment below.

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Proposed Comment [5] to Rule 3.8, Additional Responsibilities of a Prosecutor

[5] Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely disclose the evidence. What constitutes sufficient disclosure is dependent on the circumstances. In many cases, providing a copy of or access to the evidence or information is sufficient. In some circumstances, additional steps may be necessary to fulfill the disclosure obligation.

Updated: October 16, 2018