The Champion

March 2010 , Page 34 

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Beyond Brady: Using Model Rule 3.8(d) in Federal Court for Discovery of Exculpatory Information

By Irwin H. Schwartz

Last year was a difficult one for the Department of Justice. In several high-profile cases involving lawyers in “Main Justice” and in U.S. Attorney’s Offices, courts found serious and repeated violations of defendants’ constitutional rights under Brady and sanctioned the government and its lawyers.1 The Brady decision is almost 50 years old, but its promise of due process through broad disclosure by prosecutors has not been met. To secure discovery of exculpatory and mitigating information, a better tool may be ABA Model Rule of Professional Conduct 3.8(d).

The Problems With Brady 

The “Brady rule” is based on a defendant’s right to due process and upon “the special role played by the American prosecutor in the search for truth. …” Together, they mandate the “prosecution’s broad duty of disclosure. …”2 A defense attorney’s invocation of Brady does not guarantee the defense will receive exculpatory information, or receive it at a time when it can be used most effectively. As the law has

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