Must a prosecutor disclose a past romantic relationship with a police witness who may testify in one of her cases?

Plain-English summary

The inquirer is a prosecutor who had a romantic relationship, ended years ago, with a law enforcement officer who has since returned to her jurisdiction and may become a witness in one of her cases. They were not in a relationship during any ongoing case. She asks whether she must disclose the former relationship.

The opinion applies Rule 3.8(b), which requires a prosecutor to make timely disclosure of evidence or information that tends to negate the guilt of the accused, and explains that this includes information that could impeach a prosecution witness by exposing bias (citing Giglio v. United States and People v. Steadman). Because the officer's prior relationship with the prosecutor could make him a biased witness, defense counsel could use it to impeach his credibility, so the opinion concludes the prosecutor must timely disclose the prior relationship whenever the witness's testimony could be subject to challenge. The opinion adds that, although questions of law are outside its jurisdiction, New York's criminal discovery statute (C.P.L. 245.20(k)(iv) and 245.50(1)) requires disclosure of impeachment information, and that a failure to disclose could implicate Rule 3.3(a)(1) (no false statements to a tribunal) and Rule 3.4(a)(3) (disclosing what the lawyer is required by law to reveal).

The opinion also directs the prosecutor to consider whether handling the case creates a personal-interest conflict under Rule 1.7(a)(2). Whether the prior relationship creates a significant risk to her judgment depends on the facts and the relationship's likely effect on her objectivity (for example, if she holds significant hostility toward the witness that would affect in-court interactions or push her toward settlement), and she must make that assessment. If a significant risk exists, she must determine under Rule 1.7(b) whether she reasonably believes she can still provide competent and diligent representation and can satisfy the rule's requirements, including informed written consent, drawing on the parallel analysis in N.Y. State 1255 (2023).

In practice

Under this opinion, a prosecutor must timely disclose a past romantic relationship with a law enforcement witness whenever that witness's testimony could be challenged, because the relationship is impeachment information under Rule 3.8(b). Per the opinion, the prosecutor must also assess under Rule 1.7(a)(2) whether the prior relationship creates a significant risk to her professional judgment, and, if so, whether the requirements of Rule 1.7(b) are met.

Common questions

Q: Does a prosecutor have to disclose a past relationship with a police witness?

A: Per the opinion, yes, under Rule 3.8(b), whenever the witness's testimony could be subject to challenge, because the relationship is impeachment information that tends to negate the guilt of the accused.

Q: Are other rules implicated besides Rule 3.8(b)?

A: Per the opinion, yes. If New York's discovery law requires disclosure, a failure to disclose could implicate Rule 3.3(a)(1) (no false statements to a tribunal) and Rule 3.4(a)(3) (disclosing what the law requires).

Q: Does the prosecutor also have a personal-interest conflict?

A: Per the opinion, that depends on the facts. Under Rule 1.7(a)(2) she must assess whether the prior relationship creates a significant risk to her judgment, for example through hostility toward the witness, and if so apply Rule 1.7(b).

Background and rules framework

The opinion interprets New York Rule 3.8(b) (a prosecutor's disclosure duty), Rule 3.3(a)(1) (candor to the tribunal), Rule 3.4(a)(3) (disclosing what the law requires), and Rule 1.7(a)(2) and (b) (personal-interest conflicts). These correspond to ABA Model Rules 3.8, 3.3, 3.4, and 1.7. The opinion treats New York's criminal discovery statute as a question of law it does not decide.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.7(a)(2) & (b), 3.3(a)(1), 3.4(a)(3), 3.8(b)
• ABA Model Rules 3.8, 3.3, 3.4, 1.7 (analogues)

Statutes:

• New York C.P.L. 245.20(k)(iv); 245.50(1) (criminal discovery; noted as questions of law)

Cases:

• Giglio v. United States, 405 U.S. 150 (1972), impeachment evidence as exculpatory
• People v. Steadman, 82 N.Y.2d 1 (N.Y. 1993), disclosure duty extends to witness-credibility material

Other opinions cited:

• N.Y. State 1255 (2023): personal-interest conflict analysis for a romantic relationship with a law enforcement officer
• N.Y. City 2016-3; ABA 09-454 (2009): scope of Rule 3.8 relative to Brady

See also

• NYSBA Ethics Op. 1255: Defense Lawyer Dating an Officer
• NYSBA Ethics Op. 1257: Former DA at the Defender Office

Source

• Landing page: https://nysba.org/ethics-opinion-1278/