In the 1963 case of Brady v. Maryland, the U.S. Supreme Court ruled the Constitution requires prosecutors to hand over to the defense any evidence that tends to prove the defendant’s innocence. When they do not and the defendant is convicted, their failure or refusal to do so can result in a new trial.

However, the case is generally read as meaning that the prosecution must only hand over such evidence as is “material” to the case, meaning that it would probably affect the outcome. Who decides what is material? Prosecutors, on an honor system.

Moreover, they typically wait until the last minute before trial to reveal the exculpatory evidence. Furthermore, the rule only applies at trial, not during plea bargaining — and over 95 percent of all criminal cases in the United States are decided by plea bargain.

Recently, however, the Tennessee Supreme Court Board of Professional Responsibility issued an ethics ruling that extended the prosecutor’s duty beyond the bare minimum required by the Constitution. In fact, over the last decade legal ethics panels in at least 12 states have ruled that the prosecutors licensed to practice in those states must live up to a higher standard.

Tennessee’s new ethics rule requires prosecutors to hand over any evidence they have that could be favorable to the defense, regardless of whether they believe it could be material to the case. Further, they must provide the evidence in time for it to be used effectively by the defense, meaning it must be handed over in time to be considered during plea bargaining.

The Board of Professional Responsibility reports to the Tennessee Supreme Court. In Tennessee as in other states, the Supreme Court issues attorney licenses.

The Board of Professional Responsibility investigates complaints of unethical conduct and can issue discipline including public censure, license suspension and disbarment. U.S. Attorneys and their deputies (federal prosecutors) are typically licensed by the states they practice in, in addition to being licensed by their local federal court. Therefore, even federal prosecutors caught violating the new ethics rule could be subject to discipline.

The Justice Department thinks the old rules were fine and opposes having U.S. Attorneys bound by stricter rules than those required by the Constitution.

“The DOJ can’t stand it when states try to use ethics to restrain their prosecutors’ conduct,” commented a University of Texas law professor, who noted that the DOJ held this position long before the Trump administration.

The three U.S. Attorneys practicing in Tennessee have filed a grievance with the Board of Professional Responsibility’s new ruling and written a 10-page demand for an appearance on the issue. A hearing has been scheduled for September 14.