How much should you disclose?
I am still trying to figure out the impact of yesterday's decision in Cone v. Bell. The case has an unusual fact pattern - due in large part to the State's inconsistent arguments - which may limit its application to other cases. One thing I did take out of the case was the desire to make sure we understand how limited the constitutional obligation to disclose favorable evidence really is (in legal terms - Brady material)
The majority opinion noted in a footnote that a prosecutor's ethical obligations are broader than the requirements of Brady. The ABA standards require prosecutors to disclose any evidence that is "favorable" to a defendant. In contrast, Brady only requires the disclosure of "material" evidence. That is is signficant distinction, because what is material depends on who you ask. Prosecutors seldom think anything is material because the evidence is overwhelming. Most of the time the Courts agree, since you have to prove the evidence would probably alter the outcome.
It was not only interesting that the Court pointed out this distinction, it was also interesting that Justice Roberts addressed the distinction in his short concurring opinion. He wanted to make sure the Courts knew they should use the constitutional test, and not some other standards.
The judge who presided over the Sen. Stevens trial knows too well the distinction. He has written a letter suggesting the federal rules be changed to require disclosure of favorable evidence. Obviously, he's had the opportunity to witness first hand the problems with leaving too much discretion in the hands of prosecutors.
Whatever else Court held, they pointed out again that a prosecutor can comply with the constution without complying with the rules of ethics. I'm sure that's a great comfort to defendants.
