By Melissa Daniels
Law360, Los Angeles (November 3, 2017, 9:05 PM EDT) -- California prosecutors have new ethical guidelines to abide by after the California Supreme Court signed off on state bar rules requiring them to inform defense counsel of discovery and exculpatory evidence in more cases as an attempt to address prosecutorial misconduct.
The California Supreme Court signed an order Thursday that approves an amendment to the State Bar of California’s Rules of Professional Conduct Rule 5-110.
The new language says prosecutors must "make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense or mitigate the sentence," except when the court grants them a protective order when the prosecutor thinks the disclosure of the evidence could result in substantial harm to an individual or to the public interest. The rules are effective immediately.
“Prosecutors must be held to a high standard to ensure public trust in the justice system and to protect defendants and their rights,” Leah Wilson, executive director of the State Bar of California, said in a statement.
The amendment to Rule 5-110 was made as part of a broader overhaul to the California State Bar’s Rules of Professional Conduct, the first of its kind since the 1980s. The California Supreme Court had allowed the state bar to send in updates to the prosecutorial ethics rules on an expedited basis compared to the rest of its rule updates.
Prior updates were approved to Rule 5-110 in May, but the court sent back the provision about the ethical disclosure obligations for further revision. The state bar’s board of trustees returned a revised version in August.
Michael Ogul, a board member and past president of the California Public Defenders Association, wrote a letter to members Thursday to announce the Supreme Court’s acceptance of the amendment. The group had supported the change and actively pushed for it by writing letters and testifying before the Rules Revision Commission and state bar’s board of trustees, publishing columns in legal newspapers and having members submit public comments.
“Prosecutors will no longer be able to shirk their disclosure obligations by rationalizing that the exculpatory information doesn’t matter,” Ogul said in the letter. “Instead, they will now be subject to discipline any time they fail to disclose exculpatory information.”
Ogul, who is a deputy public defender in Santa Clara County, told Law360 that the net effect of the new rule will be that California prosecutors must abide by the laws of disclosure or else face professional discipline. Prior to this change, some prosecutors could have withheld evidence that they didn’t think would make a material difference to the case, he said.
“I’m not saying they don’t all the time, I’m not saying they don’t a majority of the time, but I am saying that scores, if not hundreds of prosecutors, at least on occasion, fail to turn over exculpatory information that they are required to turn over under California law,” Ogul said. “And this rule is designed to put that to a stop.”
The new prosecutorial ethics rules are in sync with the American Bar Association Model Rule 3.8. Ogul said this rule is already in play in 49 others states and California was the last to adopt a version of it.
A representative for the California District Attorneys Association didn’t immediately return a request for comment Friday.