By Kirsten M. Schimpff | 61 Am. U. L. Rev. 1729 (2012)

A prosecutor’s duty to disclose evidence favorable to the defense has proved to be one of the thorniest issues in criminal practice, no doubt in large part due to the complex, overlapping, and, at times, conflicting web of rules and standards governing that obligation: constitutional doctrine, statutory law, criminal procedure rules, and state ethics rules. The Standing Committee on Ethics and Professional Responsibility of the American Bar Association recently issued an expansive interpretation of Rule 3.8(d) of the Model Rules of Professional Conduct, which governs prosecutorial disclosure. As interpreted in Formal Opinion 09-454, Rule 3.8(d) is now in direct conflict with a federal statute governing disclosure of witness statements.

This Article critiques the process by which this conflict was created. In essence, the ABA adopted positions that proponents of broader and earlier disclosure had sought—unsuccessfully—to attain through litigation, legislation, or rulemaking processes. These earlier reform efforts failed largely due to the need to avoid the very conflict with the Jencks Act that the Opinion has now created. The Article examines the implications of this conflict, and charts a path forward. Specifically, the Article argues that reforming federal criminal discovery practice requires going through—not around—one or more of the three institutions legitimately capable of harmonizing the rules regarding disclosure: The Judicial Conference of the United States, Congress, or the United States Supreme Court.

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