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)

51-Government Attorneys

Prosecutors learning of exculpatory evidence must comply both with the Brady standard [Brady v. Maryland, 373 U.S. 83 (1963)] and with Rule 3.8(d). Thus, a prosecutor "may not withhold the evidence merely because his legal obligations pursuant to Brady have not yet been triggered." Among other things, the ethical "duty of timely disclosure of exculpatory evidence requires earlier disclosure than the Brady standard, which is necessarily retrospective, requires." Prosecutors must obtain a court order relieving them of the ethical duty to disclose exculpatory evidence if they believe that such disclosure "may jeopardize the investigation or a witness." Even if a prosecutor does not have a duty under Rule 3.8(d) to advise a defendant of a primary witness's death or unavailability, the prosecutor "may not make a false statement about the availability of the witness . . . either to the opposing lawyer during negotiations or to the court when the plea is entered." [The Opinion does not address the ethical implications of a prosecutor's silence in either scenario.]

Copyright 2000, Thomas E. Spahn