Must a prosecutor disclose to criminal defendants that a police-officer witness lied to superiors during an internal investigation?

Plain-English summary

Two police officers were questioned by an internal affairs officer about a harassment complaint made by a fellow officer, who also filed a criminal incident report against them. In response to the internal investigation, the two officers first gave written statements denying involvement, then the next day amended those statements to admit certain wrongdoing, and then under further questioning added still more facts of wrongdoing. None of the statements were sworn. No criminal charges were filed against the two officers. The question was whether a prosecutor who knows the officers failed to tell the truth to superiors during the department investigation must disclose that to criminal defendants in cases where the officers would testify, putting the officers' credibility at issue.

The committee concluded that, under Rule 3.8(d), a prosecutor is required to reveal that an officer failed to disclose the truth during an official department investigation. Rule 3.8(d) requires the prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense. The committee found the inquiry involved several acts of serious misconduct by the officers and held disclosure was required. In a footnote, it observed that the South Carolina Supreme Court had never specifically addressed what ethical standard applies in determining a prosecutor's Rule 3.8(d) disclosure requirements.

In practice

Under this opinion, on the facts presented, a prosecutor who knows a testifying officer was untruthful with superiors during an official investigation must disclose that to the defense. The committee tied the duty directly to Rule 3.8(d)'s timely-disclosure obligation and to the officers' serious misconduct, while noting the state Supreme Court had not set the precise ethical standard for Rule 3.8(d).

Common questions

Q: If a police-officer witness lied to internal affairs, do I have to tell the defense?

A: Yes. The committee concludes that under Rule 3.8(d) a prosecutor must reveal that the officer failed to disclose the truth during an official department investigation.

Q: Does it matter that the officer's statements were never sworn and no charges followed?

A: The committee still required disclosure. It treated the officers' shifting, untruthful statements as serious misconduct bearing on credibility, regardless of whether the statements were sworn or led to charges.

Q: What rule controls?

A: Rule 3.8(d), which requires the prosecutor to make timely disclosure of all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense.

Background and rules framework

The opinion applies South Carolina's version of Model Rule 3.8 (special responsibilities of a prosecutor), specifically Rule 3.8(d)'s disclosure obligation, at SCACR 407. The committee noted the South Carolina Supreme Court had not specified the ethical standard governing Rule 3.8(d) disclosure.

Citations and references

Rules of Professional Conduct:

• MR 3.8 / SC Rule 3.8(d) (prosecutor's duty of timely disclosure to the defense)

See also

• SC Bar Ethics Op. 05-01: A former prosecutor's later civil case
• ABA Formal Op. 467: Prosecutors' managerial and supervisory obligations

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-03-11/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 03-11

Facts
Officers A and B with a local police agency are questioned by an internal affairs officer regarding a complaint made by fellow Officer C who alleges harassment on the part of Officers A and B. Officer C also files a criminal complaint against Officers A and B in the form of an incident report with local police.

In response to the internal affairs investigation, Officers A and B provide written statements denying any involvement in the incident alleged by Officer C. The next day, both Officers A and B contact the internal affairs officer and amend their written statements by admitting to certain wrongdoings alleged by Officer C. Thereafter, upon questioning by the internal affairs officer, each Officer adds yet additional facts of their wrongdoing not contained in either previous statement. None of the statements, written or oral, are made under oath, nor are they notarized or otherwise sworn. Officers A and B are never questioned by the city law enforcement agency with whom the criminal complaint is filed, and no criminal charges are filed against them.

Question
Does a prosecutor’s knowledge that an officer failed to disclose the truth to his superior officer during an official department investigation require that prosecutor to reveal the same information to each and every criminal defendant in cases in which that officer will be a witness during trial, thereby placing the officer’s credibility at issue?

Summary
Pursuant to Rule 3.8(d), SCRPC, a prosecutor is required to reveal that an officer has failed to disclose the truth to his superior officer during an official department investigation.

Opinion
Rule 3.8, SCRPC, provides: “The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense....”1 This particular inquiry involves several acts of serious misconduct by the officers. Given these facts, a prosecutor is required to disclose an officer’s failure to reveal the truth.

1The South Carolina Supreme Court has never specifically addressed what ethical standard should apply when determining a prosecutor’s Rule 3.8(d) disclosure requirements.