Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases

Ellen Yaroshefsky, Foreword to Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 Cardozo L. Rev. 1943 (June 2010), available at SSRN. Laurel Terry For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system. In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship. Her voice has made a difference. For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of "new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted" and requires prosecutors to "seek to remedy the conviction" if they have clear and convincing evidence that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit. This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors. As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended. The 2010 Cardozo Symposium entitled "New Perspectives on Brady and Other Disclosure Obligations: What Really Works" is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system. This is a broader problem than one might realize. For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on "Risks and Threats of Corruption in the Legal Profession." The Survey was distributed to IBA member and 642 professionals from 95 countries responded. Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented "a first attempt to shed light" on issues that included the legal profession's perception of corruption in their own jurisdiction. Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction. Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country. (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.) Continue reading "Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases"

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