FORENSIC ETHICS

FORENSIC ETHICSFORENSIC ETHICSJUDGE MICHAEL KEASLER

COURT OF CRIMINAL APPEALSAUSTIN TEXAS

CHARLES M. MALLINASSISTANT DISTRICT ATTORNEY

TARRANT COUNTY CRIMINAL ATTORNEY’S OFFICE

Forensic EthicsForensic EthicsBrady v. MarylandBrady v. Maryland and the Rules of and the Rules of EthicsEthics

Brady v. Maryland, 373 U. S. 87 (1963). Duty to disclose favorable evidence (exculpatory or impeaching). Evidence was suppressed by state and prejudiced ensued.

Tex. Disciplinary R. Prof ’l Conduct Rules 1.01, 3.03(a) 1-5, 3.04(a), 3.09(d), 5.01.

Pertinent Texas Ethical Provisions Pertinent Texas Ethical Provisions Rule 3.03 Rule 3.03 (Candor Toward the Tribunal) (Candor Toward the Tribunal)

• a) A lawyer shall not knowingly:

• (1) make a false statement of material fact or law to a tribunal;

• (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

• (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

• (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

• (5) offer or use evidence that the lawyer knows to be false.

• (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

• (c) The duties stated in paragraph (a) and (b) continue until remedial legal measures are no longer reasonably possible

Rule 3.03Rule 3.03

Delineates five duties associated with candor towards the tribunal:

Duty not to make false statement of material fact or law;

Duty to disclose to avoid criminal or fraudulent act;Duty disclose unprivileged fact to allow informed

decision;Duty to disclose controlling authority in jurisdiction;Duty not to offer or use false evidence and duty to

make good faith effort to correct or withdraw false evidence(leaving false impression).

Pertinent Texas Ethical Provisions Pertinent Texas Ethical Provisions Rule 3.04 Rule 3.04 (Fairness in Adjudicatory (Fairness in Adjudicatory Proceedings) Proceedings)

• A lawyer shall not:

• (a) 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.

• (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or outcome of the case.

Rule 3.04(a)&(b)Rule 3.04(a)&(b)

Pertinent Ethical duties dealing with fairness of trial;

Duty not to unlawfully obstruct access to evidence, or destroy or conceal documents or other materials;

Duty not to falsify evidence or assist others in falsifying evidence;

Duty not to request or assist witnesses in testifying falsely or otherwise commit prohibited acts.

Pertinent Texas Ethical Provisions Pertinent Texas Ethical Provisions Rule 3.09 Rule 3.09 (Special Responsibilities of a (Special Responsibilities of a Prosecutor) Prosecutor)

• The prosecutor in a criminal case shall:

• (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

• (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

• (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

• (d) 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; and

• (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

Rule 3.09(d)Rule 3.09(d)

(d) 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;

See American Bar Association Formal Ethic Op. 09-454 (concerns interpretation of Rule 3.8(d) of Model Rules of Professional Conduct); George E. West II, A Prosecutor’s Duty to Disclose: Beyond Brady, 73 Tex. B.J. 546 (2010).

Rule 5.01 Responsibility of Rule 5.01 Responsibility of Supervisory LawyerSupervisory Lawyer

A lawyer shall be subject to discipline because of another lawyer's violation of these rules of professional conduct if:

(a) The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved; or

(b) The lawyer is a partner in the law firm in which the other lawyer practices, is the general counsel of a government agency's legal department in which the other lawyer is employed, or has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer's violation of these rules knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer's violation.

Comment 2 of Rule 5.01Comment 2 of Rule 5.01

Rule 501(b) likewise is concerned with the lawyer who is in a position of authority over another lawyer and who knows that the other lawyer has committed a violation of a rule of professional conduct. A partner in a law firm, the general counsel of a government agency's legal department, or a lawyer having direct supervisory authority over specific legal work by another lawyer, occupies the position of authority contemplated by Rule 5.01(b).

Brady & Rule 3.09(d)Brady & Rule 3.09(d)

Brady three prongs: (1) failure to disclose; (2) favorable (exculpatory or impeaching); (3) material.

Rule 3.09(d): requires prosecutor to make timely disclosure of known evidence or information that negates guilt or mitigates offense or sentence. No requirement of materiality.

Failure to Preserve Potentially Useful Failure to Preserve Potentially Useful EvidenceEvidenceArizona v. YoungbloodArizona v. Youngblood, 488 U.S. 51 (1988) and , 488 U.S. 51 (1988) and progeny. New case: progeny. New case: Ex parte NapperEx parte Napper, No. Ap-76,284 , No. Ap-76,284 (Tex.Crim.App. Delivered Sept. 29, 2010).(Tex.Crim.App. Delivered Sept. 29, 2010).

Different test because there is generally no duty placed on law enforcement to retain all material that might conceivable have evidentiary significance, therefore the defendant must establish:

(1) State acted in bad faith (calculated effort to suppress)(bad faith entails some sort of improper motive to prevent the def. from obtaining and using the evidence not just showing destruction);

(2) Def. can’t secure comparable evidence; (3) Destroyed evidence was material. Rule 3.04(a)&(b); Tex. Code Crim. Proc. art. 38.43

Tex. Crim.Proc. art. 39.14 and Tex. Crim.Proc. art. 39.14 and Forensic evidenceForensic evidence

Article 39.14 is the primary source of the prosecutor’s duty to provide the def. with advance notice of inculpatory information.

Early disclosure of scientific evidence is important: (1) Avoids surprise and unnecessary delay; (2) Identifies need for defense expert services; and (3) facilitates early exoneration and encourages plea negotiations.

General Discovery, Inculpatory General Discovery, Inculpatory Forensic Evidence, EthicsForensic Evidence, Ethics

Tex. Code Crim.Proc. art 39.14Upon motion of the defendant showing good cause therefore and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence;

Article 39.14(a)Article 39.14(a)

Upon a showing of good cause;Trial court can order state to produce and

permit inspection and copying of designated items they constitute or contain evidence material to the prosecution;

Judge is required to permit discovery if “evidence sought is material to the defense.”

Article 39.14(a)Article 39.14(a)

Texas has chosen to follow a rule which requires the trial court to permit discovery only if the evidence sought is material to any matter involved in the pending action in possession of the State. Quinones v. State, 592 S.W.2d 933, 941 (Tex.Crim.App. 1980).

Scope of Art. 39.14(b) and Scope of Art. 39.14(b) and Forensic ReportsForensic Reports

Older case law: analysis report of narcotics etc., fell within the “work product” privilege of the statute(produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and

their investigators and their notes or report). Alba v. State, 492 S.W.2d 555 (Tex.Crim.App. 1973); Feehery v. State, 480 S.W.2d 649 (Tex.Crim.App. 1972).

Scope of Art. 39.14(b) and Forensic Scope of Art. 39.14(b) and Forensic ReportsReports

First, the defendant has an absolute right to an independent inspection which means “testings” of evidence “indispensable” to the State’s case. McBride v. State, 838 S.W.2d 248 (Tex.Crim.App. 1975); Detmering v. State, 481 S.W.2d 863 (Tex.Crim.App. 1972); Terrell v. State, 521 S.W.2d 618 (Tex.Crim.App. 1975).


Second, due process requires that indigents be equipped with “basic tools” to mount defense, i.e., experts. Ake v. Oklahoma, 470 U.S. 68 (1985); De Freece v. State, 848 S.W.2d 150 (Tex.Crim.App. 1993).


Third, the CCA has implicitly held that the trial courts have authority to order discovery of lab and expert reports and willful failure to disclose can lead to the sanction of exclusion to testimony. State v. LaRue, 152 S.W.3d 95 (Tex.Crim.App. 2005); Oprean v. State, 202 S.W.3d 724 (Tex.Crim.App. 2006)(willful is where prosecutor has the intent to violate the order or harm the defense).


Exparte Mowbray, 943 S.W.2d 461 (Tex.Crim.App. 1996), Untimely disclosure. Potential ethical considerations:3.04 (a) 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. And if exculpatory:

3.09 (d) 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;

Expert Witness Preparation and Junk ScienceExpert Witness Preparation and Junk Science

Troedel v. Wainwright, 667 F.Supp.1456 (S.D. Fla. 1986), aff’d, 826 F.2d 670 (1987). (Murder case where expert testifies that the def. shot the victim predicated on traces of antimony and barium. The expert in reality only believed that def. was in close proximity to the gun, but later says prosecutors pushed him to go further. SFR: did the misleading testimony have a reasonable likelihood of affecting the judgment of the jury).

Winfrey v. State, NO. PD-0987-09 (Delivered Sept. 22, 2009)(Tex.Crim.App. 2010)(presentation of “junk science” scent-discrimination lineups).

Ex parte Matthews, 933 S.W.2d 134 (Tex.Crim.App. 1996)(Expert indicted for perjury. Testified she had a Ph.D and had no such degree); See

Rule 3.03(a)(5) (knowingly or using evidence that the lawyer knows to be false); See Ex parte Napper, No. Ap-76,284 (Tex.Crim.App. Delivered Sept. 29, 2010).

Rule 3.04(b) falsifying evidence, counseling or assisting a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or outcome of the case.

Ineffective Assistance and ForensicsIneffective Assistance and Forensics

Rule 1.01 Competent and Diligent Representation

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence , unless:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

(b) In representing a client, a lawyer shall not:

(1) neglect a legal matter entrusted to the lawyer; or

(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule "neglect" signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.


A lawyer generally should not accept or continue employment in any area of the law in which the lawyer is not and will not be prepared to render competent legal services. "Competence " is defined in Terminology as possession of the legal knowledge, skill, and training reasonably necessary for the representation. Competent representation contemplates appropriate application by the lawyer of that legal knowledge, skill and training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable attentiveness to the responsibilities owed to the client.


Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995)(Defendant stabbed two victims and only blood of one on knife. To explain the absence of blood the chief serologist of crime lab testified to a masking theory in that the A type masks the O. However, there were “lattes test” which can unmask. The defense never crossed and failed to prepare for the serology evidence).

Ex parte Briggs, 187 S.W.3d 458, 469 (Tex.Crim.App. 2010)(If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant's cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.... [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.”).


Hoselton v. State, 2010 WL 974793 (Tex.App.-Texarkana)(not designation for publication).Trial court appointed punishment expert. Prior to trial State subpoenaed reports of and notes of expert.

Defense claims Art. 39.14 has no mutual discovery other than 39.14(b). Court orders def. to comply with subpoena and refuses. Prior to Daubert hearing no reports turned over. Judge excludes testimony. Possible ethical violation:

Pertinent Ethical duties dealing with fairness of trial; Duty not to unlawfully obstruct access to evidence; Duty not to falsify evidence; Duty not to request third parties to refrain from voluntarily giving information to

opposing party. Rule 3.04(b).

Rule 3.01 Meritorious Claims and Rule 3.01 Meritorious Claims and Contentions Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.

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FORENSIC ETHICS