New Rule of Professional Conduct
Defense attorneys used to argue all the time with the prosecutors about whether or not they were required to turn over exculpatory evidence (evidence pointing towards innocence) they, the prosecutors, didn’t deem “material”. In other words, the prosecutor got to decide what would information would be turned over to the defense and what wouldn’t be turned over. If the prosecutor didn’t think it made a difference to the Defendant they were the ones who decided the defense doesn’t get it. It was like asking the fox who was guarding the hen house if the hens needed protecting…of course the answer from the fox was …no, of course not, I’ll let you know when they’re in danger…Such was the state of the burden on the prosecutors until recently.
There is a new Rule of Professional Conduct that makes it an ethical violation for prosecutors to withhold material evidence from the defense. This is RPC 5-110 (D) adopted by the California Supreme Court on November 2, 2017. So it’s official, if the prosecutor wants to withhold material evidence from the defense and gets caught he/she risks discipline from the State Bar. Finally, there are some consequences for those prosecutors who choose to hide evidence from the defense in a win at all costs philosophy.
This new rule is a direct result of the controversy in Orange County where the Orange County District Attorney’s Office was caught using snitches (informants) in the jail and then pretending that the snitches were acting on their own and not as police agents. Now, failure to turn over the obviously material information that the snitch is a police agent will result in discipline by the State Bar. I’m proud to say that I was part of the defense attack on this deceptive practice while litigating People v Ortiz through multiple trials. After extended litigation, real progress has been made in reforming the system which the Supreme Court validated by making sure there are consequences for failure to provide material exculpatory information.