Must a Vermont prosecutor disclose after conviction that a State expert gave a technically wrong answer on an essential element?

Short answer Opinion 89-06 requires disclosure when the corrected answer could arguably negate an essential element, leaving harmless-error and remedy questions to the court.
Bar
VTBAR
Issued
1989

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This page answers the general question as of 1989. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

After conviction, a prosecutor learned that a State expert had answered a narrow trial question incorrectly. The affirmative answer supported an essential element; a technically correct negative answer would not, although a fuller explanation could have established the element anyway. The witness had testified in good faith.

The committee applied former DR 7-103(B)'s duty to disclose evidence tending to negate guilt. It held that the duty continued after conviction and covered this error because the corrected answer could arguably defeat proof of an element. Whether the error was harmless or offered a legal remedy was for the court, not the ethics committee, to decide.

Currency note

This opinion was issued in 1989 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Did the expert's good faith remove the disclosure duty?

A: No. The committee said DR 7-103(B) extended to inadvertently inaccurate testimony when the error was facially material to an essential element.

Q: Did the committee decide whether the conviction should be disturbed?

A: No. It left harmlessness and the legal effect of the error to the parties and court.

Background and rules framework

The opinion applied former DR 7-103(B) to evidence that could negate guilt and cited Imbler v. Pachtman for the continuing nature of the duty after conviction.

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 7-103(B) and EC 7-26

Cases:

  • Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976), postconviction disclosure duty

See also

Source

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