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Point to Ponder: Pre-Trial Ethical Rule Order

by | Dec 3, 2013 | Criminal Defense

Would the result of some criminal prosecutions be different if before trial the judge entered an “Ethical Rule Order?” By “Ethical Rule Order” I mean a standing court order requiring prosecutors to turn over all evidence that might negate a criminal defendant’s guilt or mitigate the liability for the offense, where such an order if disobeyed would amount to criminal contempt?

At present, our justice system effectively affords prosecutors immunity from criminal prosecution when prosecuting a case. As a result, prosecutors generally face little to no consequences for failing to turn over exculpatory or mitigating evidence in a criminal prosecution. This is done despite the fact that the United States Supreme Court ruled in Brady V. Maryland that prosecutors have a duty to turn over all evidence that tends to prove the accused innocence or change the outcome of the trial in favor of the accused. The criminally accused have the right to a fair trial and that right is entirely undermined if the prosecuting attorney withholds exculpatory evidence.

As a proposed solution; a standing Court Order for every prosecuting attorney to turn over, pre-trial, all evidence that tends to prove the accused’s innocence or might change the outcome in the criminally accused’s favor might just be the best deterrent for such prosecutorial misconduct. Such an order would allow prosecutors to be held in criminal contempt if it is later discovered that they failed to disclose evidence that tended to prove the accused innocence or mitigated the offense. Former Texas Prosecutor Ken Anderson was eventually held accountable for such misconduct as the result of a standing ethical rule ordered by the court before the prosecution of Michael Morton. Morton was wrongfully convicted and served 25 years in prison before he was declared innocent and finally released this year. Former prosecutor and Judge Ken Anderson was sentenced to serve 10 days in jail, perform 500 hours of community service, and stripped of his license to practice law.

Compared to 25 years in prison for a wrongful conviction, 10 days jail and community service may seem to be an insignificant punishment for the harm that resulted from Anderson’s failure to disclose exculpatory evidence, however, I will be the first to say that at least it is a move in the right direction. The result sends a message to prosecutors across the country that failing to uphold their duty to disclose exculpatory evidence in a criminal prosecution can and will lead to later consequences including criminal liability. Finally, the possibility of a more impartial outcome for a criminal defendant as the result of a standing ethical order is well worth the additional time it would require the court to enter the order on the record.

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