Supreme Court Adopts Rule on Prosecutors’ Duty to Disclose Defense-Friendly Evidence

The Colorado Supreme Court on Feb. 28 announced a change to professional ethics rules that would step up prosecutors’ obligation to disclose information or evidence that is favorable to defendants. The rule will take effect July 1.

Under the revision to Rule 3.8 of the Colorado Rules of Professional Conduct, prosecutors must disclose all information, regardless of admissibility, that the “prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense” or that would affect a defendant’s decision about whether to accept a plea agreement.

The change clarifies that this information includes “all unprivileged and unprotected mitigation information” the prosecutor knows — or should know — could affect the sentence. It also prohibits a prosecutor from conditioning plea negotiations on postponing disclosure of information that negates a defendant’s guilt. Additionally, it requires the prosecutor to make “diligent efforts” to obtain potentially mitigating information by requesting it from agencies involved in the case.

However, prosecutors are exempt from the rule if a statute, rule or protective order relieves them of their duty to disclose. The exception recognizes that prosecutors might seek a protective order if disclosure of information could harm a person or the public interest. It also notes that rules such as Crim. P. 16 may allow a prosecutor to withhold evidence about informants or sensitive subjects.

The previous version of the rule didn’t specify that prosecutors must disclose information they “reasonably should know” is likely to be favorable to the defendant or affect the defendant’s decision to enter into a plea agreement. During a 90-minute public hearing before the Supreme Court on Feb. 8, some of the justices raised concerns that the new language is too vague and doesn’t require the violation to be intentional.

At the hearing, representatives from the state public defender’s office advocated for the rule change. Deputy state public defender Ben Longnecker said that without the rule change, the burden is on the defense to find missing discovery while prosecutors lack incentive to comply with disclosure rules under the rules of criminal procedure. “I think we can make this rule change to make sure prosecutors are subject to minimal ethical safeguards,” he said. “The current ethical rule doesn’t stop a prosecutor from pleading ignorance and, in a worst scenario, misrepresenting the truth regarding missing evidence.”

During the hearing, several justices asked whether the new rule could lead to an increase in ethics complaints or be “weaponized” by defense attorneys. Attorney Regulation Counsel Jessica Yates said states that have adopted similar changes to rules or case law haven’t seen a “tsunami of complaints” from the defense bar. She noted that defense attorneys have incentives to maintain good relationships with prosecutors, which keeps them from complaining “every time they’re struggling with a discovery issue.”

The rule change arose because state lawmakers wanted to introduce legislation last year that would have addressed concerns over prosecutor disclosures. According to Yates, the sponsoring legislators agreed to let an ethics rules subcommittee come up with a rule change to address the concerns. The resulting rule change proposal was a compromise between prosecutors, public defenders and private criminal defense attorneys, according to testimony at the hearing.

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