Does a Virginia prosecutor's ethical duty to disclose exculpatory evidence go beyond Brady, and must a prosecutor reveal that a key witness has died during plea talks?

Plain-English summary

The hypothetical involves a prosecutor who knows of exculpatory witness statements accusing someone else and that the primary inculpatory eyewitness has died, but who has disclosed neither while offering a plea bargain that would waive the preliminary hearing. The committee addresses two questions: whether Rule 3.8(d)'s "timely disclosure" duty is broader than Brady v. Maryland, and whether a prosecutor must disclose a key witness's unavailability during plea negotiations.

On the first, the committee concludes that Rule 3.8(d) is broader than Brady and requires earlier disclosure. The rule does not incorporate the Brady standard: it is not limited to "material" evidence but reaches all evidence with some exculpatory effect, and it requires actual knowledge rather than imputing other state actors' knowledge to the prosecutor. The committee grounds the broader reading in the history of Read v. Virginia State Bar, 233 Va. 560 (1987), after which the Bar rewrote the rule to replace the "all information required by law" (Brady) standard with the current Rule 3.8(d). "Timely" means as soon as practicable considering all the facts, and the duty is violated when a prosecutor intentionally delays without lawful justification or good cause. Because this is not a bright-line rule, the committee does not say exactly when the evidence must be turned over, but the prosecutor may not withhold it merely because his Brady obligations have not yet been triggered; if disclosure would jeopardize an investigation or witness, the prosecutor should seek a protective order, since the rule excuses disclosure only when "precluded or modified by order of a court."

On the second, the committee concludes that even if the witness's unavailability is not itself within Rule 3.8(d), Rules 3.3(a)(1), 4.1(a), and 8.4(c) bar the prosecutor from making a false statement about the witness's availability, whether to defense counsel during negotiations or to the court when the plea is entered. The opinion frames its answer as a limit on affirmative misrepresentation rather than a freestanding duty to volunteer the witness's death.

In practice

Under the Virginia rules as they stood when the opinion issued, a prosecutor's Rule 3.8(d) duty to make "timely disclosure" of exculpatory evidence is broader than Brady and requires disclosure as soon as practicable, not merely in time for the defendant to use the evidence at trial. The opinion holds that the duty is violated by an intentional delay without lawful justification or good cause, that the prosecutor may not withhold exculpatory evidence simply because Brady has not yet been triggered, and that disclosure is excused only when precluded or modified by a court order, which the prosecutor should seek if disclosure would endanger an investigation or witness. The opinion holds that, separately, a prosecutor may not make a false statement about a witness's availability during plea negotiations or when presenting a plea to the court under Rules 3.3(a)(1), 4.1(a), and 8.4(c).

Common questions

Q: Is a Virginia prosecutor's disclosure duty under Rule 3.8(d) the same as Brady?

A: No. The opinion concludes Rule 3.8(d) is broader: it covers all evidence with some exculpatory effect (not just "material" evidence), turns on the prosecutor's actual knowledge, and requires earlier disclosure than Brady's trial-focused standard.

Q: What does "timely disclosure" mean?

A: The opinion concludes that "timely" means as soon as practicable considering all the facts and circumstances, and that the duty is violated when a prosecutor intentionally delays disclosure without lawful justification or good cause.

Q: Can a prosecutor delay disclosure to protect a witness or investigation?

A: The opinion concludes that disclosure is excused only when "precluded or modified by order of a court," so a prosecutor who fears disclosure would jeopardize an investigation or witness should seek a protective order or guidance from the court rather than withhold unilaterally.

Q: Must a prosecutor reveal that a key witness has died during plea negotiations?

A: The opinion does not require volunteering it, but concludes that the prosecutor may not make a false statement about the witness's availability, either to defense counsel during negotiations or to the court when the plea is entered (Rules 3.3(a)(1), 4.1(a), 8.4(c)).

Background and rules framework

The opinion interprets Rule 3.8(d) of the Virginia Rules of Professional Conduct (Model Rule 3.8(d)), the prosecutor's special disclosure duty, distinguishing it from the constitutional Brady v. Maryland standard. It also applies the candor and honesty rules: Rule 3.3(a)(1) (no false statement to a tribunal), Rule 4.1(a) (no false statement of fact to others), and Rule 8.4(c) (dishonesty reflecting adversely on fitness). The committee relies on the regulatory history following Read v. Virginia State Bar and on federal authority noting that the ethical duty is broader than Brady (Cone v. Bell; Kyles v. Whitley).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.8(d) / Va. Rule 3.8(d) (prosecutor's duty to make timely disclosure of exculpatory evidence)
• Model Rule 3.3(a)(1) / Va. Rule 3.3(a)(1) (candor toward the tribunal)
• Model Rule 4.1(a) / Va. Rule 4.1(a) (truthfulness in statements to others)
• Model Rule 8.4(c) / Va. Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation)

Cases:

• Brady v. Maryland, 373 U.S. 83 (1963), constitutional duty to disclose material exculpatory evidence
• Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987), prompted the rewrite of the prosecutor's ethical disclosure duty
• Cone v. Bell, 556 U.S. 449 (2009); Kyles v. Whitley, 514 U.S. 419 (1995), ethical duty broader than Brady

See also

• VSB Ethics Op. 1864: Withholding Discovery Materials From a Client

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1862.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1862

”TIMELY DISCLOSURE” OF EXCULPATORY
EVIDENCE AND DUTIES TO DISCLOSE
INFORMATION IN PLEA NEGOTIATIONS

In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of
exculpatory evidence, in the form of witness statements accusing another individual of the
offense with which the defendant is charged. The prosecutor is also aware that the primary
inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to
testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in
the case, although the prosecutor has offered a plea bargain in which the defendant would plead
guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed
either the exculpatory evidence or the death of the primary witness.
QUESTION PRESENTED
1.

Is the “timely disclosure” of exculpatory evidence, as required by Rule 3.8(d), broader
than the disclosure mandated by Brady v. Maryland, 373 U.S. 83 (1963), and other case
law interpreting the Due Process clause of the Constitution? If so, what constitutes
“timely disclosure” for the purpose of Rule 3.8(d)?

2.

During plea negotiations, does a prosecutor have a duty to disclose the death or
unavailability of a primary witness for the prosecution?

APPLICABLE RULES AND OPINIONS
The applicable Rules of Professional Conduct are Rule 3.8(d)1, Rule 3.3(a)(1)2, Rule 4.13, and
Rule 8.4(c)4.
ANALYSIS
Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal
obligation to disclose material exculpatory evidence to a defendant in time for the defendant to
make use of it at trial. A number of cases interpreting this legal obligation have noted that the

1

Rule 3.8 Additional Responsibilities Of A Prosecutor
A lawyer engaged in a prosecutorial function shall:

(d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of
evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or
reduce the punishment, except when disclosure is precluded or modified by order of a court;

2

Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal;

3

Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of fact or law; or
(b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

4

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the
lawyer’s fitness to practice law;

LEO 1862
Page 2
prosecutor’s ethical duty to disclose exculpatory evidence is broader than the legal duty arising
from the Due Process clause, although they have not explored the contours of that ethical duty.5
Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments,
the Brady standard for disclosure. The standard established by the Rule is also significantly
different from the Brady standard in at least two ways: first, the Rule is not limited to “material”
evidence, but rather applies to all evidence which has some exculpatory effect on the defendant’s
guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual
knowledge of the evidence and its exculpatory nature6, while Brady imputes knowledge of other
state actors, such as the police, to the prosecutor. These differences from the Brady standard
raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady
standard, which requires only that the evidence be disclosed in time for the defendant to make
effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the
evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on
the relevant evidence.7
Although the Committee has never definitively addressed the question, it opines today
that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the
Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on
the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the
Virginia State Bar Disciplinary Board’s order revoking a prosecutor’s license, finding that the
prosecutor had complied with his legal obligations under Brady and therefore had complied with
the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was
DR 8-102 of the Virginia Code of Professional Responsibility which read, “The prosecutor in a
criminal case or a government lawyer shall . . . [d]isclose to a defendant all information required
by law.”
At the time of the conduct at issue, Beverly Read was a Commonwealth’s Attorney.
Read was conducting the prosecution of an arson case. During the investigation, the
Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at
the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and
later became convinced that the defendant was not the person Sils had observed at the scene of
the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the
scene of the crime. Read told Sils that he would not be called as a witness and that his presence
was no longer necessary. Read concluded his case and rested without disclosing that the two
witnesses had changed their statements. When Sils went home and had further discussions with
the other witness, Dunbar, both became convinced that the defendant was not the man they saw.
They returned to the courthouse during the trial the following day and agreed to testify for the
defense. Read then attempted to pass a message to defense counsel that would have disclosed
the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in
passing this information to defense counsel, Read then read into the record that the two witnesses
had recanted and would testify that the defendant was not the man they saw at the scene of the
crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct.
5

See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth
Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose
evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”),
citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady “requires less of the prosecution
than” Rule 3.8(d)).

6

As Comment [4] to Rule 3.8 explains, “[p]aragraphs (d) and (e) address knowing violations of the respective
provisions so as to allow for better understanding and easier enforcement by excluding situations (paragraph (d)), for
example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the
exculpatory nature of evidence…”

7

See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987).

LEO 1862
Page 3
The motion to dismiss was denied. A complaint against Read was made with the Virginia State
Bar and a disciplinary proceeding ensued.
Read’s counsel argued that his client had complied with Brady because the information
was available to use during trial, and therefore had disclosed “all information required by law.”
In spite of the Board’s finding that Read had willfully intended to see the defendant tried without
the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that
Read had complied with the disciplinary rule, reversed the Disciplinary Board’s decision, and
entered final judgment that Read had not engaged in any misconduct. Following this decision,
the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in
Rule 3.8(d), clarifying that the prosecutor’s ethical duty under that rule is not coextensive with
the prosecutor’s legal duty under Brady.
In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady
standard, the Committee next turns to the meaning of “timely disclosure.” In general, “timely” is
defined as “occurring at a suitable or opportune time” or “coming early or at the right time.”
Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and
circumstances of the case. On the other hand, the duty to make a timely disclosure is violated
when a prosecutor intentionally delays making the disclosure without lawful justification or good
cause.
The text of the Rule makes clear that a court order is sufficient to delay or excuse
disclosure of information that would otherwise have to be turned over to the defendant. Thus,
where the disclosure of particular facts at a particular time may jeopardize the investigation or a
witness, the prosecutor should immediately seek a protective order or other guidance from the
court in order to avoid those potential risks. As specified by the Rule, however, disclosure must
be “precluded or modified by order of a court” (emphasis added) in order for the prosecutor to
be excused from disclosure.
Because this is not a bright-line rule, the Committee cannot give a definitive answer to
the question of whether the prosecutor must immediately turn over the exculpatory evidence at
issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because
his legal obligations pursuant to Brady have not yet been triggered.
As to the second question, assuming that the witness’s unavailability does not come
within the scope of Rule 3.8(d), other rules might obligate the prosecutor to disclose this
information during plea negotiations or when the plea bargain is being presented to the court.
Specifically, Rules 3.3, 4.1, and 8.4(c) all forbid making false statements or
misrepresentations in various circumstances. Rule 4.1(a) generally prohibits making a false
statement of fact or law, and Rule 8.4(c) specifically forbids any misrepresentation that “reflects
adversely on the lawyer’s fitness to practice law.” Both of these provisions would apply to any
misrepresentation or false statement made in the course of plea negotiations with the
defendant/his lawyer. Rule 3.3(a)(1) specifically forbids any false statement of fact or law to a
tribunal, which includes any statements made in the course of presenting a plea agreement to the
court for approval and entry of the guilty plea. Accordingly, the prosecutor may not make a false
statement about the availability of the witness, regardless of whether the unavailability of the
witness is evidence that must be timely disclosed pursuant to Rule 3.8(d), either to the opposing
lawyer during negotiations or to the court when the plea is entered.8
This opinion is advisory only based upon the facts as presented, and not binding on any
court or tribunal.
8

See also Rule 3.8(a), which bars a prosecutor from filing or maintaining a charge that the prosecutor knows is not
supported by probable cause.

LEO 1862
Page 4
Committee Opinion
July 23, 2012