The Prosecutor's Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England

Abstract

The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to disclose exculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidence to her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to the prosecutor. They have also devoted significant resources to enforcing this regulation, including such measures as promulgation of appropriate forms and schedules, training of police and prosecutors, and the designation of particular police personnel to perform record-keeping duties. In the United States, by comparison, the absence of legislative or other regulation of police record keeping is starkly apparent. American legislatures have traditionally taken a "hands-off" approach to the regulation of police practices. Furthermore, we have not committed significant resources to the task of training police to record and reveal exculpatory evidence to prosecutors. Instead, we have relied on self-regulation by law enforcement agencies and the efforts of prosecutors. Neither resort has been, nor promises in future to be, effective in ensuring regular prosecutorial access to exculpatory evidence known to the police. Yet, without such access, prosecutors cannot meet their constitutional obligations to the defense. To address this problem, the author proposes amending ABA Model Rule 3.8 and the ABA Standards for Prosecution 3-2.7 and 3-3.11. The proposed amendments would (a) articulate the prosecutor's responsibility to make reasonable efforts to obtain access to exculpatory evidence known to the police, and (b) guide prosecutors on how to implement this professional responsibility.