The Michigan Rules of Professional Conduct (MRPC) provide attorneys with their ethical obligations within their roles as lawyers. However, there is one specific rule that speaks to the unique authority and responsibilities of prosecutors.

MRPC 3.8 is the only rule limited to one segment of the legal profession; it provides an additional level of responsibility above those already required of lawyers. While there can be much discussion regarding MRPC 3.8, this article focuses on subsection (d), which requires that prosecutors in criminal cases:

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Subsection (d) provides the additional responsibility for a prosecutor to provide all evidence or information that may negate the guilt of a defendant or disclose information that may mitigate information for sentencing. While prosecutors must contend with their ethical responsibilities regarding evidence under MRPC 3.8(d), they must also abide by Brady v. Maryland,¹ which specifically states:

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.²

Evidence is considered material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”³

The wording of MRPC 3.8(d) is noticeably different from that of Brady. The rule seems to suggest a greater ethical obligation on the part of prosecutors than required under the Constitution as it has been interpreted by Brady. MRPC 3.8(d) does not provide for “material” but instead states “all evidence or information[.]” There is an exception provided within the commentary recognizing that “a prosecutor may seek an appropriate protected order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.”⁴

The American Bar Association (ABA) analyzed this conflict in Formal Ethics Opinion 09-454 and concluded that 3.8(d) creates a broader requirement than Brady.⁵ In pertinent part, it states that “review of the rule’s background and history indicates that Model Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.”⁶ It concluded that the “ethical duty is separate from [the] disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders.”⁷

It further analyzed the rule in question as follows:

Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in Brady v. Maryland, which held that criminal defendants have a due process right to receive favorable information from the prosecution. This inaccurate description may lead to the incorrect assumption that the rule requires no more from a prosecutor than compliance with the constitutional and other legal obligations of disclosure, which frequently are discussed by the courts in litigation. Yet despite the importance of prosecutors fully understanding the extent of the separate obligations imposed by Rule 3.8(d), few judicial opinions, or state or local ethics opinions, provide guidance in interpreting the various state analogs to the rule. Moreover, although courts in criminal litigation frequently discuss the scope of prosecutors’ legal obligations, they rarely address the scope of the ethics rule. Finally, although courts sometimes sanction prosecutors for violating disclosure obligations, disciplinary authorities rarely proceed against prosecutors in cases that raise interpretive questions under Rule 3.8(d), and therefore disciplinary case law also provides little assistance.⁸

The Ohio Supreme Court in Disciplinary Counsel v. Kellogg-Martin⁹ considered the threshold issue of whether the interpretation of 3.8(d) is consistent with ABA Formal Opinion 09-454 or whether it is merely coextensive with Brady. The majority, over a strong dissent from the chief justice, found that the obligation to disclose exculpatory evidence under 3.8(d) did not exceed the obligation under Brady.

Whether the language of Rule 3.8(d) is clear or not, the meaning of the duty it imposes is clear: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”¹⁰ The ABA recognized the inherent discrepancy within MRPC 3.8(d) and Brady, which is why it clarified in Formal Opinion 09-454 that “Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law” but instead “requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.”

Therefore, in Michigan, the question is: Should the idea of materiality continue to play a role in defining the scope of a prosecutor’s disclosure obligations under Brady? Or should all evidence be provided irrespective of materiality to the defense and left to the defense to determine what is necessary or favorable to present?

With respect to Mr. Ohanesian, the views expressed herein are his in his personal capacity as a private citizen. The views expressed do not in this article represent the views of the Social Security Administration or the United States Government. There is no expressed or implied endorsement of his views or activities by either the Social Security Administration or the United States Government.