Utah Supreme Court Suspends Former Prosecutor for Six Months For Failing to Disclose Exculpatory Evidence

Can a prosecutor be disciplined for failing to turn over exculpatory evidence? Some courts are answering this question with “Yes.” 

ABA Model Rule 3.8 requires a prosecutor, to, among other things:

(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….” Utah has enacted Rule 3.8(d).”

The case is In the Matter of the Discipline of Tyler James Larsen, 2016 UT 26. Larsen was an assistant prosecutor with the Davis County Attorney’s Office.  Larsen was found to have violated Utah Rule 3.8 – Special Responsibilities of a Prosecutor. The violation occurred in connection with a prosecution for an armed robbery. One key issue was the identification of the perpetrator. There was no physical evidence connecting the defendant to the crime. Larsen met with eyewitnesses to the robberies and showed them a single photograph of the Defendant and asked them if they “would be able to identify him as the robber at trial. No other photographs were shown. All of the witnesses indicated that they would be able to make the identification.” Opinion ¶ 10.

At trial, a husband and wife testified that they witnessed one of the robberies. On cross-examination Husband denied that he had been shown a photograph of the defendant. Larsen did not correct the testimony. The wife then testified and admitted on cross-examination that Larsen had met with her and shown her a single photograph of the defendant. The defense moved for a mistrial and the court granted the motion. The court found that Larsen had intentionally concealed the fact that he had shown the photograph to the witnesses from the defense. 

In the proceedings before the Utah Supreme Court, Larsen argued that he did not violate the rule because the defense learned of the photograph identification during the trial. The court rejected that argument and held that exculpatory evidence must be disclosed before trial to give the defense sufficient time to prepare for trial. 

In sum, this case is part of a small but growing trend to discipline prosecutors who fail to disclose exculpatory evidence.

Edward X. Clinton, Jr.

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