Prosecutorial disclosure of mitigating information at sentencing

From the December 2024 | January 2025 Criminal Defense Newsletter

There is little case law on the prosecutor’s duty to disclose mitigating information at sentencing. No well-known Michigan case comes to mind and looking outside of Michigan there are few cases discussing disclosure of mitigating information at sentencing or even the right to discovery at sentencing.1 That said, a May 2024 Michigan Bar Journal article focused on the prosecutor’s duty of disclosure as a matter of ethics under MRPC 3.8, both at trial and at sentencing.2

The ethics rule as it relates to sentencing provides that the prosecutor has a duty to disclose all unprivileged mitigating information known to it, except where there is a protective order:

The prosecutor in a criminal case shall . . . (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 degree of 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[.] [MRPC 3.8(d) (emphasis added).]

The authors of the Bar Journal article suggest the ethics rule is slightly broader than the due process obligation to provide evidence to the accused that is favorable and material either to guilt or punishment under Brady v Maryland, 373 US 83 (1963).There is no materiality standard in the ethics rule, and the authors reference an American Bar Association opinion that concluded the ethics rule is broader than Brady.4 The Sixth Circuit has said the same.5 Several state courts have nevertheless concluded that the ethics rule is merely consistent with the constitutional standard.6 

Whether the ethics rule is broader than Brady may be a moot point in at least two sentencing scenarios: where the information would change the sentencing guidelines range or would change the judge’s mind on a key point (whether suitability to a local sentence, the amount of restitution, consecutive sentencing, etc.). In these settings, the materiality test would appear to be satisfied.

One other scenario comes to mind where materiality would appear to be a given: consideration of the victim’s views on the crime and the offender. The court rules require this consideration under MCR 6.425 (at least where the victim wishes to participate), and there may be cases where the victim knows the defendant and surprisingly does not seek vengeance. Yet this can be difficult to establish when the victim does not appear at sentencing. In the right case (domestic violence warranting its own caution), it may be worth inquiry of the prosecutor either at sentencing or in advance because some judges will be interested in forgiveness or at least the lesser need for retribution on the victim’s behalf.

Often, we may think of Brady and the ethics rule as obligations that focus on guilt or innocence, but in fact both have a broader component. The criminal prosecution continues through sentencing, and the prosecutor’s duty of disclosure continues as well. Whether the information relates to cooperation with the police, lack of serious harm to the victim or even victim forgiveness, the prosecutor is not free to withhold information that might lead to a lesser sentence.

Endnotes

1 Court rules addressing discovery often do not expressly reference sentencing, see e.g., MCR 6.201 and Fed R Crim P 16, and there does not appear to be a general right of discovery with reference to the prosecutor’s estimated sentencing guidelines range or expected arguments at sentencing. See United States v Barrett, 890 F 2d 855 (CA 6, 1989), superseded on other grounds as stated in United States v Williams, 940 F 2d 176, 181 n 3 (CA 6, 1991); United States v Wagner, 149 FRD 217 (D Utah, 1993); United States v Knell, 771 F Supp 230 (ND Ill, 1991).

2 American Ohanesian and Eagleson, The Brady Conflict?, 103 Mich B J 34 (May 2024).

3 Id.

4 American Bar Association Formal Ethics Opinion 09-454 (2009).

5 Brooks v Tennessee, 626 F3d 878, 892-893 (CA 6, 2010).

4 In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163, 582 SW2d 200 (Tenn 2019) (collecting cases).

Anne Yantus
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate.

Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.