New ABA ethics opinion requires more disclosure from prosecutors than constitutional obligations

Alexandra Natapoff at the Snitching Blog brings word of a recent but little-publicized American Bar Association opinion (pdf) defining the scope of prosecutors' ethical duty to disclose information favorable to the defense. As she describes it, the new rule:

is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties.

What's more, says Natapoff:

The ABA opinion not only reiterates the importance of prosecutorial disclosure generally, but explains that the prosecutor's ethical obligation to hand over favorable information is broader than her constitutional obligation. (emphasis added) In other words, even if the Constitution does not require disclosure, the prosecutor has an independent professional duty to disclose. While the violation of this duty will not invalidate a conviction, it could lead to professional discipline or firing.

Another interesting feature of the opinion is that prosecutorial supervisors must "establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed." This includes keeping track of information in one case that might need to be disclosed by a different prosecutor in another case. In other words, prosecutor offices must have data collection and dissemination mechanisms by which their employees can comply with their ethical obligations. This position contrasts with the recent Supreme Court decision in Van de Kamp v. Goldstein this year, in which the Court held that prosecutorial supervisors could not be sued for failing to create data collection systems to provide informant-related impeachment material to defendants. While under Van de Kamp a chief prosecutor cannot be sued for the office’s lack of disclosure procedures, under the ABA opinion she could be disciplined.

In effect, the ABA has decided that the Supreme Court's decisions on prosecutorial disclosure are too weak, ethically speaking, and that prosecutors and their supervisors have far stronger professional obligations to disclose information to defendants, including information about government informants.

This seems like a pretty significant development, though I hadn's seen it reported previously. Neither Google News nor the Texas prosecutors' discussion board showed any mention of the topic that I could find, so Alaexandra apparently is your go to source. See the rest of her post for more highlights and analysis.

Perhaps relatedly, one wonders how this might apply to prosecutors disclosing "evidence" that they themselves had fabricated?