Question: Can A Prosecutor Withhold Evidence Known To Negate Guilt Of Accused At Trial?
Answer: No. See A Local Case Below.
At relevant times, Respondent served as a deputy prosecuting attorney in Porter County. In 2013, “Defendant” was charged with 5 counts of child molesting. 4 counts were based upon statements made by the children to various officials, and there was no physical or medical evidence of child molesting. 5 days before trial, Respondent interviewed E.C. in preparation for trial with a detective present. During this interview E.C. recanted stating he had lied at the request of his and K.C.’s biological father. Respondent believed E.C.’s recantation was truthful. However, Respondent did not disclose E.C.’s recantation to defense counsel, nor did she withdraw Count II at any point prior to or during trial. During her direct examination of E.C., Respondent avoided asking any questions about the allegations underlying his recantation, and the fact his father had coached him to lie, was revealed at trial during defense counsel’s questioning of E.C. and other witnesses. Respondent did not immediately disclose to the court that she had known about E.C.’s recantation for nearly 1 week. After the prosecution concluded its case-in-chief, the trial court addressed Respondent’s failure to disclose the recantation and entered judgment of acquittal for Defendant as to all 4 counts. The Commission charged Respondent with violating several rules of Indiana Professional Conduct. Following a hearing, it was concluded that Respondent violated the 3 rules as charged. The matter was then put before the Indiana Supreme Court on the report and finding of the hearing officer appointed to hear the case.
The Indiana Supreme Court noted that Rule 3.8(a) forbids a prosecutor from prosecuting a charge that she knows is not supported by probable cause. Respondent concedes that she violated this rule but attempts to cast her violation as merely a “formal” one, in that Count II technically was left “in the case” as Defendant’s trial commenced but otherwise was abandoned by the prosecution. Respondent gave no indication that Count II was being abandoned when the court reviewed with counsel the proposed preliminary instructions, nor did she do so when those instructions were given to the jury. After preliminary instructions were given to the jury, Respondent told the jury in her opening statement that “[a]t the end of the evidence … I will ask you to find this Defendant guilty in what he is charged with, the four counts of child molesting.”
Respondent also admits that she failed to disclose E.C.’s recantation to the defense, but she argues that Rule 3.8(d) did not require her to do so. Respondent’s argument is premised on the tenuous notion that E.C.’s recantation was merely impeachment evidence. But Rule 3.8(d) in relevant part expressly requires timely disclosure of “all evidence or information known to the prosecutor that tends to negate the guilt of the accused”. Further, under the circumstances of this case we cannot agree that E.C.’s recantation was merely impeaching. Respondent concedes E.C.’s recantation was evidence tending to negate Defendant’s guilt on Count II, and as discussed above we reject Respondent’s contention that the inclusion of Count II in the trial was a trivial formality. And in a case in which all remaining counts likewise were founded entirely upon reports made by Defendant’s 2 stepchildren, we find it very difficult to characterize direct evidence that the stepchildren’s father successfully coached at least 1 of them to lie about what Defendant had done as mere impeachment.
Finally, Respondent argues in her briefing to this Court that her conduct was not “prejudicial to the administration of justice” within the meaning of Rule 8.4(d). Respondent’s contention that Defendant was never actually at risk of conviction of Count II, because Respondent elicited no evidence to support that count. This argument conflates prejudice to the defendant with prejudice to the administration of justice; they are not the same, and the focus of Rule 8.4(d) is the latter.
In sum, we find sufficient support for the hearing officer’s findings and conclusions. The Court concludes that Respondent violated Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d). For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of at least 18 months, without automatic reinstatement, effective October 10, 2018. Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18). 105 N.E.3d 1089