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Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.1
"The prudent prosecutor will resolve doubtful questions in favor of disclosure."2 I adopt the prudent prosecutor from United States v. Agurs, a Supreme Court case about the prosecutor's disclosure obligations. The case is short, but it encapsulates many of the features that complicate the standards of prosecutorial ethics. James Sewell was stabbed to death by Linda Agurs in a motel room. He was killed with one of the two knives he was carrying. He had deep stab wounds; she had "no cuts or bruises of any kind, except needle marks on her upper arm."3 Her defense was that when he attacked her she killed him in self-defense. She was convicted of second degree murder.
Three months later, Agurs' lawyer filed a motion for a new trial. The motion was based on his discovery that Sewell had a prior criminal record (one guilty plea to assault and carrying a deadly weapon, and another to carrying a deadly weapon). "Apparently both weapons were knives."4 The prosecutor knew about the record before trial and did not disclose it. Defense counsel had not requested the evidence.
The Supreme Court ruled that Agurs was not entitled to a new trial. The Court accepted the trial judge's determination that Sewell's prior record was cumulative of the evidence presented at trial and did not contradict any evidence presented by the prosecutor. The wound evidence, moreover, contradicted the claim of self-defense. Agurs was not deprived of her right to a fair trial. Accordingly, "there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor's constitutional duty to disclose."5
In its ruling, the Court distinguished Agurs' motion from appeals based on newly discovered evidence. In new evidence cases, the appellant faces the "severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal."6 In making this distinction, the Court referred to the prosecutor's special responsibility to justice. "If the standard applied to the usual motion for a...