These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)


56-Duty to Advise the Court

Under Rule 3.8(d), a prosecutor must disclose all evidence or "information" known to the prosecutor that tends to "mitigate the guilt of the accused or mitigate the offense." Significantly, "Rule 3.8(d) is more demanding than the constitutional case law" -- because it requires the disclosure of evidence or information "without regard to the anticipated impact of the evidence or information on a trial's outcome." The disclosure obligation covers "information" as well as evidence. Furthermore, "[n]othing in the rule suggests a de minimis exception to the prosecutor's disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant's guilt, or that the favorable evidence is highly unreliable." The disclosure obligation covers evidence and information "known" to the prosecutor, and does not require the prosecutor to conduct an investigation or review files to look for such information. The disclosure duty cannot be avoided by the defendant's consent to forego such disclosure, because "[a] defendant's consent does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant's consent."

Copyright 2000, Thomas E. Spahn