Disentangling the Ethical and Constitutional Regulation of Criminal Discovery


[Excerpt] "In recent years, scholars have urged courts to be cautious when transporting constitutional precedent from one remedial context to another. So, for example, a decision shielding an officer from civil liability for an unreasonable search on the ground that the search did not violate “clearly established” law should not necessarily resolve the separate question whether the fruits of that search should be admissible in a criminal trial under the good-faith exception to the exclusionary rule. We share this concern and wish to call attention to the special problems that can arise when constitutional precedent is thought to inform a government actor’s ethical responsibilities. We do so by analyzing the controversy over whether a prosecutor’s ethical duty to disclose exculpatory information is coextensive with her constitutional obligation to do so."

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Harvard Law Review Blog


Harvard Law Review

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