Rule 3.09(d) is Broader than Brady

In a case of first impression, the Board of Disciplinary Appeals finds that prosecutors owe a heightened duty to make timely disclosure to the defense of all evidence or information that tends to negate guilt or mitigate punishment. Additionally, prosecutors have a duty to not obstruct another party’s access to evidence. Hiding this information, or failing to disclose it, can lead to professional sanctions.


We have known for years that prosecutors must disclose information and evidence which (1) tends to negate guilt, (2) mitigate punishment, or (3) impeach state witnesses. Brady v. Maryland was decided in 1963! In the past 52 years, the Supreme Court has continued to modify or clarify the prosecutor’s duty. Most of these cases have involve continued prosecutorial abuse where prosecutors across the country have continued to justify not providing particular evidence or information to the defense. Often, prosecutors have been cited as claiming to have believed the information to be “not credible” or “not relevant.” (Kelly Siegler made such a claim in the David Temple case when she testified she didn’t believe the information so there was no reason to turn it over.)

Michael Morton

Lawyers have believed for years that the prosecutor’s duty must be greater. Finally, after Michael Morton spent 25 years in prison for a crime he didn’t commit, our legislature expanded the duty of prosecutors by creating legislation that specifically told prosecutors they must disclose the information and evidence required under Brady and other cases.

Texas Disciplinary Rules

Now, the Board of Disciplinary Appeals issues its opinion stating the Texas Disciplinary Rules of Professional Conduct impose yet an even greater duty upon prosecutors. [As an aside, some may say prosecutors should not be held to a higher burden; however, they have chosen this profession and are attempting to take away citizen’s lives and liberty and thus should be held to the highest burden. Just as they articulate police officers and other public officials have a higher burden, they too are public servants who owe a greater duty.]

In this case, a prosecutor failed to disclose information related to the eyewitness identification which tended to cast doubt on the identification. He stated he failed to disclose it because he didn’t believe Brady required it. Essentially, the witness originally stated it was her husband that attacked her. Later, in preparation for trial, the witness stated she believed it to be her husband even though she never saw his face. The prosecutor testified he did not believe this information was exculpatory (tending to negate guilt); therefore, he did not disclose this to the defense.

The Board found that the prosecutor’s duty under the Texas Disciplinary Rules is greater than the duty owed under Brady and assessed a professional punishment against the prosecutor for his failure to follow the rules of professional conduct. The greater duty does not impose a “materiality” component or a “believability” component. This greater duty eliminates any question as to the perceived use of the information by the defense. The defense is entitled to the information so that they may investigate whether or not it is credible, relevant, or useful. Rule 3.09(d) specifically is designed to eliminate and prevent a prosecutor from making a judgment call as to the information that could then be a wrong judgment call.

Comparing a prosecutor’s duty under Brady with the disciplinary rules, the Board held Brady seeks to protect the integrity of the process and the trial while the ethics rule and disciplinary proceedings serve an entirely different purpose — protection of the public.

Specifically, the prosecutor was found to have violated two rules:

Rule 3.09(d) requires a prosecutor in a criminal case to: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Rule 3.04(a) requires that: a lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.

Thus, by violating Rule 3.09(d) in failing to disclose the eyewitness identification issues to the defense, the prosecutor further violated Rule 3.04(a) by obstructing the defense’s access to that evidence.

This opinion goes a long way to show and explain to prosecutors that their duty is not only to provide Brady information but also that their duty is greater than that imposed by Brady. Maybe now those who continuously fail to understand the magnitude of Brady will start to understand the Rules.

About JoAnne Musick

JoAnne Musick is a criminal, juvenile and family lawyer and is board certified in both criminal and juvenile law. She is a two-time past president of HCCLA (the only president to serve two terms) and is active in many legal organizations including TCDLA. JoAnne is also a regular contributor at Fault Lines, HCCLA, and her own blog. Catch up with her on social media @joannemusick.


  1. […] the Texas Board of Disciplinary Appeals (who regulate lawyers and their conduct) found that the prosecutor owes a greater duty than that provided under Brady. The prosecutor’s duty to disclose does not depend on […]

  2. […] a sentence, or even possibly sanction a prosecutor, the State Bar Disciplinary Panel could enforce broader rules and even discipline. After withholding Brady information, the Board of Disciplinary Appeals pointed […]