VSB Standing Committee on Legal Ethics seeks public comment on LEO 1862

Additional Info

view draft of LEO 1862 (PDF file)

RICHMOND - Pursuant to Part Six: Section IV, Paragraph 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 advisory Legal Ethics Opinion 1862, What Constitutes “Timely Disclosure” of Exculpatory Evidence by a Prosecutor?

This proposed opinion generally addresses a prosecutor’s obligations pursuant to Rule of Professional Conduct 3.8(d), which requires that a prosecutor make timely disclosure of exculpatory evidence. The hypothetical involves a pending criminal case in which there is an upcoming preliminary hearing; the prosecutor is aware of witness statements that identify another individual as the offender. The question presented is whether the prosecutor has a duty under the Rules of Professional Conduct to disclose this evidence, even though he does not have a legal obligation under either procedural rules or constitutional law to do so. A second question presented is whether the prosecutor has a duty to reveal information that is not admissible evidence but that does tend to weaken the strength of the case against the defendant, such as the fact that the primary witness on behalf of the Commonwealth has died and will not be available to testify against the defendant.

In this proposed opinion, the Committee concluded as to the first question presented that “timely disclosure” means disclosure as soon as practicable considering all the facts and circumstances of the case, and that the duty to make timely disclosure has been violated if the prosecutor intentionally delays making the disclosure or withholds disclosure in order to gain a strategic advantage. As to the second question presented, the Committee concluded that Rule 3.8(d) only requires the disclosure of “the existence of evidence” which the prosecutor knows to be exculpatory; the death of a witness is not evidence and therefore its disclosure is not required by the Rule.

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/site/regulation/pending-leo.

Not later than May 4, 2012, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.

Updated: Apr 02, 2012