Louisiana District Attorneys Call for Amendment to Brady Obligation in Rule 3.8(d)

On July 22, 2019, the Louisiana District Attorneys Association sent a formal request to the Chief Justice of the Louisiana Supreme Court requesting that the court amend Louisiana Rule of Professional Conduct 3.8(d) to accurately reflect a Louisiana prosecutor’s obligation to produce exculpatory Brady material in criminal cases. See LDAA Letter to Louisiana Supreme Court Regarding Rule 3.8(d) (Jul. 22, 2019).

Nearly two years ago, the court resolved an unsettled question as to whether a prosecutor’s “ethical” duty to disclose exculpatory evidence under Louisiana Rule of Professional Conduct 3.8(d) is broader than the similar constitutional duty under Brady v. Maryland (U.S. 1963). In an opinion written by Justice Crichton, the court determined that the duties “are coextensive.” See In re Ronald Seastrunk, No. 2017-B-0178 (La. Oct. 18, 2017).¹

In late May 2019, however, the Louisiana State Bar Association’s Rules of Professional Conduct Committee—at the urging of the Office of Disciplinary Counsel—rejected a proposed amendment to Rule 3.8(d) that would have brought the black-letter text of the rule into line with the court’s ruling in Seastrunk. Instead, the committee voted to retain language that is simply no longer the law in Louisiana. A baffling and bizarre vote indeed.

The LDAA’s resolution, if adopted by the court, would revise Rule 3.8(d) to include the Brady “materiality” standard in the black-letter text of the rule:

The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all material evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either 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 material unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal . . . .

See LDAA Letter to Louisiana Supreme Court Regarding Rule 3.8(d) (Jul. 22, 2019). This proposed revision is sensible and would provide clear and accurate guidance to Louisiana prosecutors. It should be adopted by the court.