The revised version of CRPC 3.8(d) is effective July 1, 2022. Here you will find FAQs to help you better understand the change. 
As always, if you have  questions don’t hesitate to reach out to CDAC. 

Training

Attorney Regulation Counsel Jessica Yates presented a live stream training at CDAC on Tuesday, June 28^th, 2022. Her entire presentation, including her slide deck is available for you and includes many of her direct responses to other questions posed after the presentation.  It is highly recommended that all prosecutors watch this CLE presentation. 

The presentation can be found in our video training library under ethics or click here.

Frequently Asked Questions

These FAQ’s represent the first of what will be an ongoing list and are intended to provide guidance and best practices. Everyone needs to read the rule and the comments. This is not a bright line rule as written. The comments are critical to the intent and application of the rule and should always be referenced in any dispute regarding the rule.

• When does the new version of Rule 3.8 go into effect? The revised version of CRPC 3.8(d) is effective July 1, 2022.

• Does this new version expand the potential for a prosecutor to be found in violation of rule 3.8(d)? The short answer is yes. Both the prior rule and the amended rule require that a prosecutor “make timely disclosure to the defense of all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.” The newly adopted version expands this responsibility and now provides that a prosecutor “timely disclose all information, regardless of admissibility, that a prosecutor knows or reasonably should know could negate the accused, mitigate the offense, or would affect a defendant’s decision about whether to accept a plea disposition.

• How does the addition of “regardless of admissibility” change my obligation to disclose? This language broadens the range of information that must be disclosed. Legal admissibility is now irrelevant to the decision whether to disclose.

• How does “timely disclose” differ from the prior language requiring “timely disclosure”? The change is best addressed within the new comment 3 to the rule where it is explained that the prosecutor must evaluate the timeliness of disclosure on a case by case basis with consideration of the status of plea negotiations, critical stages, pending testimony impacting credibility or negating guilt, or whether the information relates to a prosecution witness who might be called to testify at the next hearing. In short, prosecutors need to keep disclosing information as quickly as possible when it comes in. 

• How does timely disclosure apply to plea timing? Information that would impact a decision to accept or reject a plea must be provided prior to the time that a defendant has to make any such decision. However, best practice would be to either (1) convey all relevant information along with the offer, or (2) identify the date on which the prosecution expects to identify the information (with the understanding that the defendant will have additional time in which to make the decision.)

• What is the impact of the new language saying, “information known to the prosecutor… that the prosecutor knows or reasonably should know…”? This language seems to create a new standard holding the prosecutor responsible for situations involving (1) actual knowledge with respect to information; and (2) negligence with respect to significance of information in the case. The “intentional” standard from In Re Attorney C is no longer the rule. A negligence standard is now applicable in regard to significant information. 

• How does materiality factor into the new language regarding information that “…tends to negate the guilt of the accused or mitigate the offense.”? The materiality standard of from Brady is inapplicable to disclosure but still matters in court. Each piece of information is to be examined on a case by case basis with the need to address 3 fundamental questions in regard to information known to the prosecutor: (1) does it tend to negate guilt, (2) does it tend to mitigate the offense, and (3) WOULD it affect a defendant’s decision about whether or not to accept a plea disposition. 

• How does materiality still matter in court? In regard to motions to suppress or for dismissal based upon a violation of Rule 16 or Brady, materiality still matters. Further, as expressly stated in the comment to the rule, “[A] finding of a violation of paragraph (d) should not itself be the basis for relief in a criminal case.”

• What does “ [w]ould affect a defendant’s decision about whether to accept a plea” mean? This is a new disclosure requirement that is not present in Rule 16 or found in due process cases. In addition to exculpatory/impeachment information. The effect is a materiality standard for non-exculpatory information to the extent that the information would impact a plea disposition decision.

• How will this new provision related to plea decisions likely be applied? Potentially several situations related to non-exculpatory witness statements will require disclosure under this language. Things like witness unavailability, failure to personally serve a witness, or strong statements from witnesses such as “I’m not coming to court” are best considered things that need to be disclosed. In contrast, more ambiguous statement such as “I don’t want him to go to jail” or “I don’t want to testify but will if I have to” should fall into the realm of mental impressions rather than being defined as “information” that must be disclosed. The line here seems treacherously unclear at this point and CDAC will continue to seek guidance from OAR.

• What is the simplest way to understand the ethical requirements related to this “plea decision” provision on a day to day basis? A prosecutor commits an ethical violation by failing to disclose exculpatory evidence, impeachment evidence, and mitigation evidence, even if that evidence would not change a plea decision. Other kinds of information – not exculpatory, not impeaching, not mitigating – must be disclosed only if the information would affect a defendant’s decision about whether to accept a plea disposition.

• Are there any exceptions to this? Yes –Disclosure is not required if the prosecutor is relieved of this responsibility by statute (privilege), rule (Rule 16, opinions, theories, or conclusions of the prosecutor) or protective order of the court (informants). See other exceptions within Rule 16.

• How do we protect ourselves from ethics violation allegations under this new rule? The negligence standard requires that the prosecutor MUST have reason to know information exists. Protect yourself with several proactive steps:
  • Maintain a constant flow of information between you and various law enforcement/investigative personnel.
  • Notify agencies of continuing obligations.
  • Document inquiries to law enforcement for information.
  • Make disclosure requests to ALL agencies known to be involved in the case.
  • In the context of specific discovery requests, litigate what you “reasonably should know” exists.
  • Obtain protective orders from the court regarding any information you do not believe should be disclosed.
  • This rule was written to assure that we are not responsible to become the defense investigators charged with investigating or searching for impeachment of collateral matters, but we ARE expected to search out information related to the pending case.