Duty to Disclose Information to Defense Counsel

December 8, 1998

CJE Opinion No. 98-20

Before becoming a judge, you were employed as an assistant district attorney. A defendant who was prosecuted by your former office and convicted of murder while you were so employed has filed a motion for a new trial. That motion is presently pending before one of your colleagues. As grounds for his motion, the defendant is alleging misconduct by his trial attorney. While in the district attorney's office, you were involved in an investigation of that same attorney and thereby became privy to information that may, arguably, lend some credence to the claims raised in the defendant's motion. The assistant district attorney who originally prosecuted the defendant is still in the office and is handling the motion. You believe he was aware of the information you possess about the attorney, but you are unsure whether he now remembers it, or, if he does, whether he intends to reveal it to the defendant.

In view of the above facts, you ask this Committee whether you are obligated to find out if the prosecuting attorney has disclosed the information to the defendant, and, if he has not, whether you should do so. In that regard, you also ask whether you may suggest to the judge before whom the motion is pending to hold off ruling on the motion because you have information bearing on the case and are awaiting our advice concerning your obligation to disclose it.

It is somewhat difficult to pigeonhole your request in any specific provision of the Code of Judicial Conduct. Several provisions, however, will come into play in a more general way. Whatever a judge does must be measured against the mandates that he "should . . . observe, . . . high standards of conduct so that the integrity . . . of the judiciary may be preserved" (Canon 1); and that he "should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity . . . of the judiciary" (Canon 2(A)). In view of the constitutionally imposed obligation that the government disclose to a criminal defendant potentially exculpatory evidence [see Brady v. Maryland, 373 U.S. 83 (1963) and Commonwealth v. Wilson, 381 Mass. 90 (1980)], the above Canons would be implicated if a judge personally possessed exculpatory information, but kept it to himself.

Moreover, while we do not mean to intimate that your former colleague who is handling the motion for a new trial on behalf of the district attorney's office will fail to comply with his obligations under the law, a judge must not ignore unprofessional conduct by a lawyer. See Canon 3(B)(3). Upon becoming aware of such conduct, he must "initiate appropriate investigative or disciplinary measures." Canon 3(B)(3)(b). It would certainly be consistent with the spirit of this provision that a judge, if in a position to do so, take steps to head off any issue regarding unprofessional conduct and thereby avert the need to take "investigative or disciplinary measures."

Since this Committee is authorized to render opinions only "with respect to the interpretation of rules of court relating to the ethical and professional conduct of judges" (see Rule 3:11 of the Rules of the Supreme Judicial Court), it is not our role to determine whether the information you possess is exculpatory, or whether, even if it is not exculpatory, its disclosure is required under some rule or convention governing criminal practice. If you are persuaded that the answer to either of those questions is yes, we note the following with respect to any remedial measures you might consider. To avoid any impropriety under Canon 3(A)(4)'s prohibition against ex parte communications, you should not contact only one of the parties in the criminal matter. Moreover, you should also not contact the judge hearing the motion so as, on the one hand, to shelter that judge from any ex parte communication, and, on the other hand, to avoid any appearance that you are "lend[ing] the prestige of . . . [your] office to advance the private interests" of the defendant in the criminal case in contravention of Canon 2(B).

While there may be other ways to navigate yourself through this problem consistent with the above Canons, we suggest that you call both the prosecuting attorney and defense counsel in before you for a meeting at which you can divulge the information you have. In this way you will be assured that this information will be disclosed without running afoul of any of the provisions in the Code of Judicial Conduct discussed above.