I have a trial scheduled on 2nd degree poss. w/intent as a result of a traffic stop. I have found a case on point that would invalidate the stop and thereby torpedo the whole case. The defense attorney has filed a supression motion contesting the search of the defendant's person after he was removed from the vehicle, but not the stop itself. Do I have an affirmative duty, under the law or the code of ethics, to turn this case over to the defense attorney?

Well, it might depend on if it's controlling authority:

"A lawyer shall not knowingly 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." Disc Rule 3.03(a)(4).

I'm not sure that it should matter that the defense att'y hasn't raised the issue of the stop. It would certainly strike some as bad form, to say the least. But I'm open to persuasion. I guess you could make an argument that, since the stop is not at issue, the case is not "adverse" to your client's "position."

On the third hand, (assuming that it's controlling authority) if you had known beforehand it was a bad case, you probably would have decided not to take the case at all (without the necessity of waiting for a suppression motion). The only difference between then and now is the passage of time. You know, doing justice and all.

Maybe this is a "test" post (spoof), just to see how much attention the defense bar pays to this forum. It is hard for me to imagine that in a drug possession case the defense counsel has not thoroughly reviewed the detention-search setting for a controlling "gotcha" precedent.

But, I have to question why "justice" includes Fourth Amendment considerations. Many, many countries operate quite well without an exclusionary rule. The government sees fit to stop my vehicle for such things as surveys, road repair, etc. I would never think much of it until "temporary" detentions extended to several minutes (17 at last count?). Unless, of course, I was going to knowingly possess an illegal substance while using my vehicle.

My point is that a defendant may waive the protection of the Fourth Amendment (as interpreted in Weeks). Is it unjust to prosecute until we know his stance? Does the court need to know about authority that might apply, if it is not called upon to make a decision? On the other hand, if it is clear opposing counsel is not rendering competent assistance, then maybe that does call for prosecutorial action. Maybe you can "disclose" in camera and pass the buck to the court in this situation?

Has anyone ever seen a defense attorney stand up and let the judge know that there is actually no case law supporting his argument for suppression and that the courts have nearly unanimously ruled against him but he just needs to put on a show for his client before doing a plea?

No, John, we just tell ya'll quietly, and the Judge sees it coming.

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But, I have to question why "justice" includes Fourth Amendment considerations. Many, many countries operate quite well without an exclusionary rule.

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So? Many, many countries also don't have a jury system, but we somehow regard that as important. In any event, it's the system we have (and I'm no fan of the exclusionary rule), but we have to deal with it.

If a judge asks a prosecutor why he was hiding evidence relevant to a Fourth Amendment issue, I don't think the best response would be, "Well, yeah, but they don't have the exclusionary rule in Zimbabwe, so what's the diff?"

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My point is that a defendant may waive the protection of the Fourth Amendment (as interpreted in Weeks). Is it unjust to prosecute until we know his stance?

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Well, I don't know about unjust, but I was also dimly trying to make an administrative point. If an officer presents a case for prosecution flowing from a stop that had zero reasonable suspicion, is it worthwhile to file that case? "The officer said that he pulled the car over 'cause he didn't like the orange paint job, but maybe the defendant will exercise his right to waive the Fourth Amendment." I don't wanna judge, but working up a case like that might not be the best use of prosecutorial resources.

It may be that, in the event defense counsel doesn't ask to suppress anything at all, there is no ethical problem in not disclosing caselaw relevant to the traffic stop. But Navarro County's question was the closer one of what to do when there's an actual suppression motion pending (albeit not related to the initial stop). On that, I don't have a definite opinion, but your fear of an ineffective assistance claim is well-grounded.

I may be new to all of this law stuff, but I seem to recall reading somewhere (in Code of Criminal Procedure Art. 2.01, maybe) that says that a prosecutor's first duty is not to just get a conviction, but to see that justice is served (or words to that effect). So it seems to me that if you, as a prosecutor and representative of the State, have knowledge of a legal authority that shows your case to be bogus, then you have a duty to disclose it to the court and opposing counsel -- just like if you had evidence that would show the guy to be not guilty.

You should keep in mind how something like this will look in the papers once it gets out that you knew about this fact but failed to disclose it. While everyone wants to bitch and moan about how defense counsel plays it fast and loose with ethics and the Rules, do you want to be accused of doing the same, Mr. Prosecutor?? While such behavior on the part of the defense can sometimes be expected, think of what the Court will think of you in the future when it is found out that you have done the same.

In any event, the situation here is NOT the same as when the defense makes a lame or half-hearted attempt to argue a position that he or she knows is not the most correct. Everyone can see through such an arguement and they all know why it is being made (to appease a client and/or to get him to take a plea that is really in his best interests). When the State wants to lock someone up when it knows beforehand that it's case is legally flawed, way bother with the Rules or Constitution at all? We might as well live in some Third World hell-hole where justice does not matter and trials are just a formality.

Let your conscience be your guide, Mr. Prosecutor. And don't do anything that you would not mind seeing printed on the front page of your local paper or shown on (pick your favorite national, liberal media news outlet here).

[This message was edited by Dennis Foster on 08-21-05 at .]

Is Foster for real, or are you some prosecutor playing devil's advocate to get a rise? Seems like I remember somewhere in a previous post that you are a law student? Have you learned yet that ours is a system of ADVOCATES?!! Disclosing exculpatory evidence isn't the equivalent of pointing out case law that might not be in your favor. It isn't the same as protecting an ineffective defense attorney's butt. Justice is served when we play by the rules and do our best for our clients. Newsflash: our client isn't the defendant. This is something I probably would disclose (actually, I probably would have rejected the case in the first place, but that's a different issue) but not because it is somehow constitutionally required. It's because it would be a big waste of time to go through the process when you know you have a defense attorney who has provided ineffective assistance of counsel. So, yes, even though it's not our job, we often wind up protecting a bad defense attorney's butt in order to protect our case. Can't tell you the number of times I have told defense attorneys they need to file an application for probation in the middle of a jury trial. Even had one argue with me that he didn't have to file it. Wasn't because I wanted them to have probation.

[This message was edited by Tim Cole on 08-21-05 at .]

I did not understand the question to involve "hiding evidence relevant to a Fourth Amendement issue". I took the question to be whether the prosecutor had an obligation to educate the defense counsel (and maybe the court) about the legal significance of facts already known to him. Assuming all the affirmative links are available (for all I know the defendant may have confessed), I merely question whether "justice" as used in 2.01 demands "disclosure" of the "case on point". After all, we are entitled to argue for changes in the law or to draw fine distinctions. But, I am also wondering why this case was not found by the prosecutor until so late in the process if it is truly a "white horse". I also assume the stop had nothing to do with paint jobs, etc., but something a bit more substantial.

Well, I apologize if I misunderstood. I just took your comment about the Fourth Amendment and "justice" to be more global than I guess you actually meant. Even so, I'm not sure why failing to disclose adverse caselaw relative to a Fourth Amendment issue should be qualitatively different from that relative to any procedural rule, or, for that matter, on a legal sufficiency issue. I'll have to think about that.

Other thoughts:

I don't pretend to know what 2.01 would require -- my only point was that the Disciplinary Rules might require the disclosure of controlling adverse authority. Without more facts, we can't really be sure.

What if the defendant confessed? It seems in that case, disclosure would be more, not less important. It would certainly strengthen the guy's ineffectiveness claim since a 4th amd violation would be the only thing his lawyer should have been looking for.

I also think we should be able to argue for changes in the law. But it's hard to do that if you don't cite to the case you think needs to be overruled (or whatever).

Finally, you're right that it's hard to discuss this case without knowing any of the facts of the stop. That's why, I suppose, this has devolved into some kind of theoretical discussion. But Navarro County made it clear that this unidentified case was dead on-point. It could be that it's a ridiculous appellate opinion that no one could have expected (or even considered). I dunno.

One other note. So far as I am aware the "authority" referred to in Rule 3.03(a)(4) is that of the highest court in the jurisdiction. An intermediate appellate decision does not qualify. For an example of a violation of the rule see Colonial Pipeline, 960 S.W.2d at 273.

The comment to the rule reads: "Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case." I take that to mean that until the "discussion" is initiated, there is little ethical reason to plug in the "legal premises". Thus, if the stop (or its legality) has not been raised as a topic in the case in Corsicana, I am having a hard time seeing silence as misleading or being dishonest with the court.

Let me use a concrete example to illustrate how my reasoning might work:

Somewhere in the Tenth appellate district a vehicle is stopped based on reasonable suspicion and a passenger is illegally detained. A search of the vehicle produces contraband from a location that was accessible to the passenger and there were other reasons to suspect the passenger was knowingly exercising control over it. I choose to prosecute the passenger and I want to argue he has no standing to object to the search of the vehicle based on e.g. Hughes, 24 S.W.3d 833, 838 (Tex.Crim.App. 2000). The trial court might be most interested in hearing about Crisp, 74 S.W.3d 474. But, I am convinced that although the case is on point, it was wrongly decided since it was based on the minority position in Lewis,664 S.W.2d at 353-4 and I cannot understand how the fruit of a reasonable search of a vehicle is tainted by the illegal detention of the passenger.

I might well be tempted to ignore Crisp in my argument to the court if opposing counsel overlooks it too.

Now I am going to go read Chip's book and see what the right answer is.

[This message was edited by Martin Peterson on 08-21-05 at .]

Just to clarify things a little:

1. The stop was based on a defective brake light.

2. The "defect" is a slight crack in the cover that allows a minute amount of white light to shine through which, according to the officer, is a violation of 547.303 & 547.323 of the Transportation Code re: light colors.

3. I just got this case recently and the nature of the defect wasn't known until after the charge had been filed and the tape was viewed. According to the report, it seemed like a pretty cut and dried case. The defendant even confessed upon arrival at the jail, according to the officer.

4. Vicknair v. State, 670 S.W.2d 286, states that this "violation" is not a proper basis on which to arrest or detain someone, as long as the brake light in question still emits a clearly visible red light (which this one did).

5. Vicknair is a Houston Appeals Court case and is therfore persuassive, but not controlling in this case because we are under the Waco Appeals court.

So to sum up: it's not Brady evidence (or evidence at all, for that matter) and the Model Rules do not impose an affirmative duty (only for controlling authority). The only questions are of morality (Is it right to convict a known drug dealer - and he is - when by dodging a technical bullet?) and practicality (What would it do to the reputations of myself, my boss, and the office of District Attorney in our county if we did not disclose and it eventually came out?).

Vicknair is a court of criminal appeals case.
Vicknair v. State, 751 S.W.2d 180 (Tex. Crim. App. 1986).

BTW, Vicknair is a tail light (547.322(d)) case but you mention brake lights (547.323(d)):


(d) A stoplamp shall emit a red or amber light, or a color between red and amber, that is:

(1) visible in normal sunlight at a distance of at least 300 feet from the rear of the vehicle; and

(2) displayed when the vehicle service brake is applied.


Interestingly, an appellate court in Idaho recently rejected the reasoning in Vicknair pointing out that their statute (like ours) says the tail lights "shall emit a red light" -- not a red and white light. State v. Patterson, 97 P.3d 479 (Idaho App. 2004, pet. denied) (citing Williams v. State, 853 P.2d 537 (Alaska Ct.App.1993)).

Since the cca seems to be on a big plain language kick these days an attack on Vicknair might get some interest.

In sum then,
1. The authority is controlling
2. It's probably on point
3. It's adverse to you; BUT
4. Until D challenges the propriety of the stop, not adverse to your "position."

So the DR's may not apply.

I can see a prison conversation in the future: "What? He stopped you for a cracked lens? Dude, haven't you ever heard of Vicknair?"

My job is to see that justice is done. My job is not to be prosecutor AND defense attorney. I'm not there to point out all possible defenses and arguments to the defense. Wake up and smell the coffee! The dude ultimately is guilty as sin... his defense attorney needs to look for a way to suppress the stop. If there is an argument to be made that could be found to be reasonable by a judge/jury, your darn right I'm gonna advocate for the stop being valid and the defendant taking responsibility.

That's the system my friend.

It seems to me that the bottom line is that the stop was bogus and the officer screwed up for doing it.

Nearly twenty years of CCA precident says that you cannot stop or detain someone because of this. Sounds to me like the defendant has a legitimate reason to file a Section 1983 lawsuit for the violation of his civil rights. If you quietly dismiss the case and make it seem like your doing the guy a favor in doing so, maybe that will be the end of it. But if you go after the guy, the facts and the CCA's controling authority are going to come out and he's going to be mad and want to come after you guys and the cops for violating his rights.

Since you seem to understand that the whole thing boils down to doing the right thing, then just go ahead and do it. As a representative of the State, you have a responsibility to take the high road whenever possible.

In this day and age of all kinds of public misconduct coming to light, I would think that both you and your boss would earn a lot of credit for doing what is right even if you did not really want to do it.

Just my two cents, anyways.

Well, Dennis, I hope you are taking some international law classes, because you would find out that most civilized countries don't penalize society for mistakes made by police. Canada, for example, does not have an exlcusionary rule.

You are rather quick to blame the officer, and I suppose that is the American way. And you say nothing about the criminal actions of the driver. When does that weigh into your moral self-righteousness?

If there is a CCA or 2nd CA case clearly and foursquare against me, I call it to the court's attention and then try like hell to distinguish it. If it is plain that the search, for instance, is illegal, I dismiss. For me personally, I think it is bad faith to argue an untenable position at the suppression hearing. Sometimes one is tempted to let the Judge be the heavy but, in my view, it is our responsibility to educate our law enforcement agents on the sublties of the law. Letting the judge pour you out and then walking around telling the police what a SOB the judge is lets a teachable moment pass for the sake of convenience.

Well, I guess the stop did relate to defective red paint(ing) after all. I have on occasion argued it is not whether a violation was observed, but whether the officer reasonably thought he had observed a violation. See e.g., Joubert, 129 S.W.3d at 689. Thus, maybe there is a way around Vicknair consistent with justice, 3.03, and the Fourth Amendment. At any rate, you are not charged with finding the law applicable to the case for defense counsel. I presume he can view the same tape and draw his own conclusions about the veracity (legal effect) of the officer's articulable facts.

If you have a case where you know the stop is bad, you have choices. Personally, I would dismiss the case, and have had to do so as a prosecutor in the past. It is better for the officer to know the correct procedure NOW. What would happen if the same officer, believing that he acted under the color of the law, pulls a guy/gal over and there is evidence that he/she is a serial killer, then you learn its the same type of stop and the stop is bad, evidence surely suppressed?