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The Prosecutors Duty of Disclosure Under ABA Model Rule 3.8(d)
By Theresa Newman, James E. Coleman Jr
The American Bar Association (ABA) has now officially clarified that the ethical duty of disclosure under Rule 3.8(d) of the Model Rules of Professional Conduct is broader than the constitutional obligation established by Brady v. Maryland and its progeny.1 In Formal Opinion 09-454, which took effect Jan. 1, 2010, the ABA settled the point, which for years had created some confusion and uncertainty among courts, state Bar Associations, and even prosecutors. The Opinion explained that, although the disclosure obligation under Rule 3.8(d) may overlap with prosecutors’ other disclosure obligations, it is “separate from” any imposed under the “Constitution, statutes, procedural rules, court rules, or court orders.”2 This clarification continues the ABA’s recent, commendable effort to revise the Model Rules to help prevent and rectify wrongful convictions.3
The language of Model Rule 3.8(d) has not changed:
A prosecutor in a criminal case shall:… make timely disclosure to t
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