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'Disclose More Evidence,' Tennessee Tells Prosecutors

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By William Vogeler, Esq. on August 17, 2018 3:45 PM

Everybody knows prosecutors have a duty to disclose exculpatory evidence, but reasonable minds may differ about how much.

That is the sticking point in a debate that is heating up in Tennessee. In a new ethics opinion, the state Board of Professional Responsibility says prosecutors have a higher duty to disclose than required by the U.S. Supreme Court.

In Brady v. Maryland, the High Court said they must disclose "material" evidence. Tennessee says they should produce "all" evidence that favors a defendant and then some.

"The Honor System"

That's the gist of it in Tennessee and a dozen other states, according to the ABA Journal. Defense attorneys want it all and they want it now.

"Every other constitutional right applies from Day One, except for this, apparently," says Michael Working, executive treasurer of the Tennessee Association of Criminal Defense Lawyers. "And it's just on the honor system, which is moronic."

Nobody said district attorneys are moronic, but every defense attorney says prosecutors are not their clients' friends. That's why the U.S. Justice Department opposes the Tennessee ethics board.

The government wants the board to rescind its opinion. Defendants could use it as a "tactical weapon" and "engage in blind fishing expeditions through the government files."

"Fishing Expeditions"

But Tennesseans love fishing. The Tennessean said the ethics rule falls in line with a national trend.

"The general, slow trend is toward more openness in discovery," said Christopher Slobogin, director of the criminal justice program at Vanderbilt University's law school.

Martesha Johnson, a Nashville public defender, said the ethics decision will lead to a better justice system.

"The prosecutor cannot know what is material to the defense because they don't know the defense theory," she told the Tennessean. "This decision ensures that a person accused of a crime, where their liberty is at stake, will receive the fairest trial possible."

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