1. FORENSIC ETHICS JUDGE MICHAEL KEASLER COURT OF CRIMINAL APPEALS
AUSTIN TEXAS
CHARLES M. MALLIN
ASSISTANT DISTRICT ATTORNEY
TARRANT COUNTY CRIMINAL ATTORNEY’S OFFICE
In light if the many DNA exonerations prosecutorial misconduct has been highlighted in cases dealing with “tainted or fraudulent forensic evidence.” While it is true that prosecutors have a constitutional duty under the federal and state “due process’ and “due course of law” provisions of the various constitutions. The are other ethical considerations applicable both to the defense and the state. This presentation deals with the corresponding ethical rules as it relates to disclosure of forensic lab results and the interaction of the rules of profession responsibility as they relate to the constitutional mandates, and the rules of discovery and candor and honestly which now apply to both parties in the litigation.
What this power point or presentation does it outline briefly the Brady obligations. The obligations imposed the rules of Ethical conduct and case law from various jurisdictions and the potential ethical pitfalls that may be present.

2. Forensic Ethics Brady v. Maryland and the Rules of Ethics
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.
Naturally you start with Brady as a due process constitutional mandate on the State, but the rules of professional conduct is applicable both to the Prosecution and the defense.
Forensic Ethics Brady v. Maryland and the Rules of Ethics

3. 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
This is the entire rule but let’s look at the duties and obligation of candor it imposes on both parties.
Pertinent Texas Ethical Provisions Rule 3.03 (Candor Toward the Tribunal)

4. 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).
Rule 3.03

5. 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.
Pertinent Texas Ethical Provisions Rule 3.04 (Fairness in Adjudicatory Proceedings)

6. 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.
Rule 3.04(a)&(b)

7. 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
Pertinent Texas Ethical Provisions Rule 3.09 (Special Responsibilities of a Prosecutor)

8. (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 (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 3.09(d)

9. Rule 5.01 Responsibility of Supervisory 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.
Rule 5.01 Responsibility of Supervisory Lawyer

10. 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).
Rule 5.2 a Supervised lawyer nonetheless is not relieved of responsibility because he acted under the supervision of another attorney. What 5.01 is concerned with is a lawyer in a position of authority over another lawyer and knows of an ethical violation and does nothing about it.10
Comment 2 of Rule 5.01

11. 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.
Brady & Rule 3.09(d)

12. 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
DA gets call, Can I destroy evidence. The reason I even included this is because of the recent case of Napper.
Failure to Preserve Potentially Useful Evidence Arizona v. Youngblood, 488 U.S. 51 (1988) and progeny. New case: Ex parte Napper, No. Ap-76,284 (Tex.Crim.App. Delivered Sept. 29, 2010).

13. Tex. Crim.Proc. art. 39.14 and Forensic evidence
Article 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.
So far I’ve really dealt with exculpatory matters, but what is also important is discovery of forensic inculpatory matters.
Tex. Crim.Proc. art and Forensic evidence

14. General Discovery, Inculpatory Forensic Evidence, Ethics
Tex. Code Crim.Proc. art 39.14
Upon 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;
General Discovery, Inculpatory Forensic Evidence, Ethics

15. 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)

16. 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).
Material does not have the same meaning as materiality does in Brady situations. Material seems to have been defined as evidence which is important or essential to the State in establishing the defendant’s guilt.
Article 39.14(a)

17. Scope of Art. 39.14(b) and Forensic 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).
There are probably three reasons why this is not the law: 1) the are several cases from the various courts of appeals and CCA floating around that suggest the list of items discoverable in article 39.14(a) is not exhaustive; (2) the right to inspect is broader than just viewing the evidence; (3) the defendant has a right to put on a defense; and (4) he has a “due process” right to expert as a rebuttal witness and or consultant.
Scope of Art (b) and Forensic Reports

18. Scope of Art. 39.14(b) and Forensic Reports
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 ); Terrell v. State, 521 S.W.2d 618 (Tex.Crim.App. 1975).
Scope of Art (b) and Forensic Reports

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

20. Scope of Art. 39.14(b) and Forensic Reports
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 ); 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).
Scope of Art (b) and Forensic Reports

21. Scope of Art. 39.14(b) and Forensic Reports
Exparte Mowbray, 943 S.W.2d 461 (Tex.Crim.App ), 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;
Scope of Art (b) and Forensic Reports

22. Expert 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 (Delivered Sept. 22, 2009)(Tex.Crim.App )(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.
Expert Witness Preparation and Junk Science

23. Ineffective 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.
Ineffective Assistance and Forensics

24. Ineffective Assistance and Forensics
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.
Ineffective Assistance and Forensics

25. Ineffective Assistance and Forensics
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.”).
1. Subpoena all of the doctors who had treated Daniel during the two months of his life to testify at trial. Introduce the medical records through the treating doctors and elicit their expert opinions;
2. If counsel was convinced that applicant could not pay for experts to assist him in preparation for trial or to provide expert testimony, withdraw from the case, explaining to the court that applicant was now indigent, prove that indigency (as was done in the writ proceeding), and request appointment of new counsel;
3. Remain as counsel with the payment of a reduced fee, but request investigatory and expert witness fees from the trial court for a now-indigent client pursuant to Ake v. Oklahoma
Ineffective Assistance and Forensics

26. Ineffective Assistance and Forensics
Hoselton v. State, 2010 WL (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 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).
Ineffective Assistance and Forensics

27. Rule 3.01 Meritorious Claims and 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.
Rule 3.01 Meritorious Claims and Contentions