Opinion discusses the duties of a prosecutor to disclose exculpatory information to defense in the context of three scenarios. Reference is made to the constitutional issues.

The inquiring attorney is a Deputy Maricopa County Attorney who has requested that the committee resolve a "heated debate" among prosecutors within his office regarding the prosecutor's duty to disclose "exculpatory" information.

The prosecutors have grappled with the contours of their obligation, specifically whether the rule requiring disclosure is limited to evidence which clearly tends to show that the defendant is not guilty, or whether it extends to what has been characterized as mere "problems of proof”.

To place the debate in perspective, the inquiring attorney requests the committee to answer the above question through three scenarios which he poses as follows:

1. The defendant is charged with aggravated Driving While Under the Influence, a class 5 felony. The arresting officer observed the defendant's driving, administered field sobriety tests, and administered the breath test. The arresting officer testified at the preliminary hearing and a record was made of his testimony. Soon thereafter, he passed away. The Deputy County Attorney offered the defendant a stipulated sentence prior to the officer's passing. The defendant is contemplating whether to take the offer or proceed to trial. Must the Deputy County Attorney disclose the fact that the officer passed away? If so, when?

2. The defendant is charged with Possession of Narcotic Drugs for Sale arising from a 1989 search warrant. The Deputy County Attorney makes an offer to a stipulated sentence then learns that the drugs were inadvertently destroyed in 1990 by the police department during relocation of its property room. The defendant is contemplating whether to take the offer or proceed to trial. The State could, if necessary, proceed to trial with only testimony and lab reports. Must the prosecutor disclose the fact that the drugs were destroyed? If so, when?

3. The defendant is charged with Driving While Under the Influence of Drugs, a class 1 misdemeanor. One key piece of evidence is a urine sample given to the police by the defendant on the night of the arrest pursuant to compliance with the Implied Consent law. The urine sample tested positive for methamphetamine. All of the sample, however, was consumed in testing leaving no portion for an independent test by defense counsel.

The State may have sufficient evidence to proceed to trial even if there were no urine sample. The defendant has made no Motion for Discovery. Must the prosecutor disclose the fact that all of the urine sample was consumed in testing? If so, when?

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(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 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; and

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

The Supreme Court of the United States has determined that the due process right to a fair trial mandates that ·the prosecution disclose information favorable to the defendant that is material to either guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Evidence is "material" when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). The Brady obligation extends not only to purely exculpatory information, but also to information that could be used to impeach government witnesses. For example, nondisclosure of a grant of immunity to a witness who testifies against a criminal defendant violates due process because witness credibility is at issue. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). Finally, because these questions can be difficult, the courts have cautioned prosecutors to resolve doubtful questions in favor of disclosure. Brady v. Maryland, supra; State v. Jones, 120 Ariz. 556, 560, 587 P.2d 742, 746 (1978).

The A.B.A. ethical codes have long recognized a similar obligation on the part of the prosecution to disclose information favorable to the defendant.^[1] DR 7-103(B) of the Model Code of Professional Responsibility specifically required that prosecutors "make timely disclosure to counsel for the defendant... of the existence of evidence... that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”^[2] The current provision of the Arizona Rules of Professional Conduct, ER 3.8(d), expands this requirement by mandating disclosure not only of the "existence" of favorable evidence, but of the evidence itself.^[3] In addition, the current rule requires disclosure of "evidence or information that tends to negate guilt" thus making it clear that the admissibility of Brady material is irrelevant. Finally, the current rule specifically provides that the prosecution may seek a ruling from the court as to its disclosure obligations.

Brady obligations cannot be decided in a vacuum but must be considered in the context of the jurisdiction's criminal discovery rules. In Arizona, the Rules of Criminal Procedure contain especially broad requirements for disclosure by the prosecution. Rule 15.1(a) (7) essentially tracks the language of ER 3.8(d) by requiring that the prosecutor disclose the following no later than 10 days after arraignment in Superior Court:

All material or information which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce the defendant's punishment therefor, including all prior felony convictions of witnesses whom the prosecutor expects to call at trial.

Other portions of this rule require disclosure at the same time, inter alia, of the names and addresses (except victims) of all prosecution witnesses to be called in the case-in-chief, Rule 15.1(a)(1), a list of all documents or tangible evidence to be used at trial, Rule 15.1(a)(4), and the names and addresses of experts who have examined any evidence in the case, Rule 15.1(a) (3). Upon written request, the prosecutor is required to "make available to the defendant for examination, testing and reproduction any specified items contained in the list [of documents and tangible objects]." Rule 15.1(c). These broad disclosures by the State trigger equally broad disclosure requirements on the defendant. See Rule 15.2, Ariz. R. Crim. P. Both sides have a continuing duty to disclose additional information or material covered by the rules. See Rule 15.6, Ariz. R. Crim. P.

The defendant is charged with Aggravated Driving While Under the Influence, a class 5 felony. The arresting officer observed the defendant's driving, administered field sobriety tests, and administered the breath test. The arresting officer testified at the preliminary hearing and a record was made of his testimony. Soon thereafter, he passed away. The Deputy County Attorney offered the defendant a stipulated sentence prior to the officer's passing. The defendant is contemplating whether to take the offer or proceed to trial. Must the Deputy County Attorney disclose the fact that the officer passed away? If so, when?

Authorities have held that, where a witness furnished sworn testimony at a preliminary hearing and was subjected to cross examination, use of the transcript was permissible at a trial held after the witness had expired. James v. Wainwright, 680 F.2d 102 (llth Cir. 1982); Morrow v. Wyrick, 646 F.2d 1229 (8th Cir. 1981). Admission of the transcript is not allowed in every case, however, and objections can be made for a variety of reasons including that the cross examination conducted was not "the equivalent of significant cross-examination". Id. 646 F.2d at 1233.

While disclosure of the death of the officer may be required under ER 3.8(d), it is not necessary to reach that question in this scenario. Given the requirement of Rule 15.1(a) (1), Ariz. R. Crim. P., that the names of all witnesses be disclosed, the prosecutor would have an obligation to tell the defense lawyer that the officer will not be a witness or to correct any previous listing of the officer as a witness. ER 3.4(c) prohibits a lawyer from "knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." As this committee has recognized when dealing with a criminal defense attorney's duty to turn over physical evidence of the crime which comes into his possession, "If a legal obligation attaches, the attorney is ethically required to obey the law." Opinion No. 85-4 (March 14, 1985) at p. 6. See also Hitch v. Superior Court, 146 Ariz. 588, 708 P.2d 72 (1985).

The prosecutor has a legal obligation to inform the defendant of all witnesses to be called in the case-in-chief. If the officer has been listed, then the prosecutor has an obligation to notify the defense lawyer that the officer will no longer be a witness. To do otherwise would be to deceive and mislead the defendant and be prejudicial to the administration of justice. ER 8.4(c) and (d). This disclosure should be made as soon as the prosecutor learns of the unavailability of this witness, and certainly before the defendant is asked to respond to the plea offer. See Virginia State Bar Ethics Opinion 1477, Law. Man. On Prof. Conduct (ABA/BNA) p. 1001:8713 (8/24/92) (lawyer who learns that client's answers to interrogatories were false may not attempt to effectuate settlement before answers are corrected).

The defendant is charged with Possession of Narcotic Drugs for Sale arising from a 1989 search warrant. The Deputy County Attorney makes an offer to stipulated sentence then learns that the drugs were inadvertently destroyed in 1990 by the police department during relocation of its property room. The defendant is contemplating whether to take the offer or proceed to trial. The State could, if necessary, proceed to trial with only testimony and lab reports. Must the prosecutor disclose the fact that the drugs were destroyed? If so, when?

According to the Supreme Court of the United States in Arizona v. Youngblood, 488 U. S. 51, 109 S. Ct. 333 (1988), the failure of the government to preserve evidence "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," is not a denial of due process of law "unless a criminal defendant can show bad faith on the part of" the government. Id. 488 U.S. at 57-58, 109 S. Ct. at 337. See, also, State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152 (1993).

Again, it is unnecessary to decide whether disclosure is required under ER 3.8(d) because disclosure must be made under ER 3.4. The drugs in this case likely were listed as tangible evidence under Rule 15.1(a) (4). Now that the prosecutor has learned that this evidence has been destroyed, he is under an obligation to correct the Rule 15.1 disclosure. This correction must be accomplished as soon as possible after the prosecutor learns of the destruction. Certainly, it must be done before any response is made by the defendant to the plea offer, as otherwise the defendant would be misled as to the strength of the State's case. ER 8.4(c) and (d).

The defendant is charged with Driving While Under the Influence of Drugs, a class 1 misdemeanor. One key piece of evidence is a urine sample given to the police by the defendant on the night of the arrest pursuant to compliance with the Implied Consent law. The urine sample tested positive for methamphetamine. All of the sample, however, was consumed in testing leaving no portion for an independent test by defense counsel. The State may have sufficient evidence to proceed to trial even if there were no urine sample. The defendant has made no Motion for Discovery. Must the prosecutor disclose the fact that all of the urine sample was consumed in testing? If so, when?

In this case, the Rule 15.1(a) (4) requirement of a list of all tangible evidence may not include the urine sample. If it does, then, of course, the same analysis stated above would apply and disclosure is required. Most likely, however, the prosecution has simply disclosed a report of the urine test which apparently does not reveal the destruction of the urine sample.

The inquiring attorney reports that no "Motion for Discovery" has been made. The defendant would have a right to production of the urine for retesting under Rule 15.1(c), but must make a written request for it. Had he done so, there would be no question that disclosure is required.

Generally, the due process clause of the Federal Constitution does not require preservation of breath samples in DUI cases in order to introduce results of breath-analysis tests at trial. California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984). The Arizona Supreme Court, however, applying the due process clause of the State Constitution, has held that such preservation of breath samples is necessary. State ex rel. Dean v. City Court, 163 Ariz. 510, 789 P.2d 180 (1990); Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). It has also held that due process requires that a defendant be advised of his right to an independent test because of the "inherently evanescent" quality of breath evidence. Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986). This rule was not extended to blood tests because a sufficient supply of blood was available for retesting. State v. Kemp, 168 Ariz. 334, 336, 813 P.2d 315, 317 (1991). Thus, the lack of a sufficient urine sample for retesting in this case could give rise to a motion to suppress the State's test results or a motion to dismiss for a due process violation.

Moreover, the failure to preserve any urine sample for retesting would most certainly give rise to a defense request for an instruction to the jury under State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). That instruction states as follows:

If you find that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the defendant's guilt.^[4]

The Arizona Supreme Court has continually affirmed the necessity of a Willits instruction in cases of failure of the State to preserve evidence, even where due process would not itself require such preservation. See Youngblood, 173 Ariz. at 506-507, 844 P.2d at 1156-1157.

The laws governing DUI prosecutions are extremely complex and changing. See A.R.S. §§ 28-691, et seq. Whether those laws themselves may require disclosure of the unavailability of a urine sample for retesting is beyond the scope of this opinion. If they do, then ER 3.4 clearly requires that the prosecutor disclose that fact. Nevertheless, it appears to the committee that the lack of such evidence is sufficiently exculpatory under the law cited above to call for disclosure under ER 3.8(d). Again, this disclosure must be made in a timely manner so that the defendant may use it in the preparation of the case and in responding to any plea offers.

I believe we have gotten off course in speculating on the law in connection with Arizona Rule of Criminal Procedure 15, but that is not what has compelled me to dissent.

The issue which is of considerable concern to me is the proposal that Ethical Rule 3.8(d) is not coextensive with the Constitution. Such an opinion would confer greater rights to defendants than the Constitution does and has the effect of creating a super-exclusionary rule. It would be elevating the opinions of this committee and the Ethical Rules above decisions of the Supreme Court of Arizona and the Supreme Court of the United States, with the power to create substantive rights for defendants not existing in the Constitution. This is not within the province of this committee; and it may well be a violation of the separation of powers doctrine of the Constitution (See, U.S. v. Simpson, 927 F.2d 1088, 1090-1091 (9th Cir. 1991 )); and a violation of the Supremacy Clause of the United States Constitution if applied to federal prosecutors. See, Baylson v. Disciplinary Board of Supreme Court of Pa., 975 F.2d 102, 111-113 (3rd Cir. 1992).

Additionally, the practical realities should be considered. What better way to interfere with law enforcement efforts than to threaten a prosecutor with a bar complaint? This weapon is certainly more effective than the existing exclusionary rule which merely excludes inadmissible evidence. One might expect that such an opinion would be used as a weapon by defense counsel to threaten that the government must now open its entire file despite the fact that the Constitution, as interpreted by the Arizona and United States Supreme Courts, does not require such a result. Prosecutors will be chilled by the thought of defending a bar complaint to the detriment of law enforcement.

As the Supreme Court of the United States, in establishing the requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), stated in United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985):

An interpretation of Brady to create a broad, constitutionally required right of discovery "would entirely alter the character and balance of our present systems of criminal justice." [Citation omitted.] Furthermore, a rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interests in the finality of judgments.

What is more, such open discovery provides the possibility of subornation of perjury, harassment and witness tampering. Many witnesses in criminal investigations involving public and organized crime figures would never cooperate if they knew their information would be prematurely disclosed.

This opinion does violence to well-established constitutional law, and creates adverse consequences to law enforcement. Therefore, I dissent.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

[1] This ethical duty predates the Supreme Court's application of the due process clause to prosecutorial disclosure. See R. Rosen, "Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger," 65 N.C.L. Rev. 693 (1987).

[2] The Comment to DR 7-103(B) makes it clear that the omission of a "materiality" requirement gives it broader application than the Brady due process standard:

. . . DR 7-103(B) does not limit the prosecutor's ethical duty to disclose to situations in which the defendant requests disclosure. Nor does it impose a restrictive view of "materiality." DR 7-103(B) states that the prosecutor has a duty to make a timely disclosure of any evidence that tends to negate guilt, mitigate the degree of the offense, or reduce the punishment. It appears possible, therefore, that a prosecutor may comply with the constitutional standards set forth in Brady and Agurs and Still be in violation of DR 7-103(B)....

American Bar Foundation, Annotated. Code of Professional Responsibility, Comment to DR 7-103(B) at pp. 330-331(1979).

[3] The A.B.A. Comments to Rule 3.8(d) reaffirm that the ethical duty to disclose is broader than the constitutional due process obligation:

A prosecutor's ethical obligation, though derived from constitutional mandates, seeks to preserve public confidence in the prosecution function as well as to avoid constitutionally significant harm to the defendant. Thus, Rule 3.8(d) requires disclosure of all information that may tend to negate the defendant's guilt, mitigate the offense, or reduce punishment.

The ethical duty therefore, requires disclosure beyond that which may be material under the Bagley standard ...

A.B.A. Annotated Model Rules of Professional Conduct (2nd ed., 1992), Rule 3.8(d), Comment at p. 408.

[4] The Note to this instruction clearly establishes its applicability to this situation:

A defendant is entitled to a Willits instruction upon evidence that (1) the State failed to preserve material evidence that was accessible and might have tended to exonerate him, and (2) there is resulting prejudice to defendant. Thus, where the State placed reliance on evidence such as blood, its duty of preservation becomes increasingly important, and if the State then refers to this lost evidence to support guilt, the defendant is prejudiced to the point where failure to give this instruction is reversible error. [Id. at p. 11]