A prosecutor violates ER 3.8(a) when they know a charge lacks PC. "Knows" means actual knowledge (may be inferred from circumstances, ER 1.0(f)). If a prosecutor files in good faith believing PC exists, a subsequent court finding of insufficient PC at a preliminary hearing doesn't automatically violate the rule—it depends on what the prosecutor knew or should have known at filing.

Important: PC is necessary but not sufficient. In In re Sponsel (2025 WL 1477523), the Arizona Supreme Court held that constitutional minimums don't satisfy ER 1.1's "thoroughness and preparation" requirements. The prosecutor reviewed only 8 minutes from 100+ hours of bodycam footage before filing novel charges. The Court found ethical violations even though PC arguably existed, emphasizing that prosecutors must conduct systematic review of available evidence—particularly in novel/complex prosecutions. Meeting the PC threshold for ER 3.8(a) does not insulate a prosecutor from discipline under other rules requiring competence and diligence.

Brady material is evidence favorable to the accused that is material to guilt or punishment. Prosecutors must make timely disclosure of all evidence/information that tends to negate guilt or mitigate the offense. This codifies Brady v. Maryland principles. Arizona Rule 15.1(b)(8) mirrors this. The obligation exists regardless of whether the prosecutor thinks the information is immaterial or can be explained away at trial.

Important: Consulting with a supervisor does not eliminate the disclosure obligation. In re Rubin (PDJ-2020-9095) involved a prosecutor who contacted his supervisor about a testifying victim’s high BAC—both missed the disclosure duty, focusing instead on competency to testify. The prosecutor was disciplined because attorneys have individual responsibility for meeting ethical duties.

Yes. If eyewitnesses failed to ID the defendant or an informant implicated someone else, this must be disclosed even if the prosecutor deems it unreliable. The defense has the right to make its own credibility assessment. The prosecutor's subjective evaluation doesn't eliminate the disclosure duty.

Yes. Evidence relevant to a justification defense is clearly exculpatory and must be presented. Example: witness statement that victim tried to grab the accused's gun before being shot (relevant to self-defense) must be disclosed even if other evidence suggests the accused initiated confrontation. Willis v. Bernini ex rel. Cnty. of Pima, 253 Ariz. 453 (2022).

Yes. The prosecutor must disclose as soon as the destruction is discovered, even if the State can still proceed with other evidence. Destruction affects the defendant's ability to conduct independent testing/investigation and is information that tends to negate guilt or affect case outcome.

Yes. Rule 15.1(a)(1) requires disclosing witness names, so the prosecutor must inform defense counsel the person is no longer available as a witness or correct any prior listing. This information could materially affect whether the defendant accepts a plea offer. See Ariz. Ethics Op. 94-07.

Yes. A prosecutor's former romantic relationship with a witness creates potential bias that could be used for impeachment, making it information that "tends to negate the guilt of the accused" under ER 3.8(d). NYSB Ethics Op. 1278 (2025). Disclosure is required whenever the witness's testimony could be subject to challenge, regardless of how long ago the relationship ended or the prosecutor's subjective view of its relevance. This applies even if the relationship predated any involvement in the case.

Yes, and prosecutors must stay current. In In re Hobbs (PDJ-2015-9113), the prosecutor received a reprimand and costs for continuing outdated plea practices for a full year after Criminal Rule 15.8 was amended to impose broader disclosure obligations on plea offers. Ignorance of rule amendments is not a defense to violating ER 3.8(d). Prosecutors must proactively monitor changes to discovery rules, plea procedures, and other rules affecting disclosure duties. Relying on outdated materials or failing to attend training on rule amendments will not mitigate discipline.

No, that conduct violates ER 3.8(d). When a prosecutor shows witnesses a single photo and asks if they can ID the defendant at trial—especially when ID is key and no other photos are shown—this suggestive procedure is information that tends to negate guilt. This must be disclosed timely, not when trial begins. In re Larsen, 379 P.3d 1209 (Utah 2016).

This is unlikely to satisfy ER 3.8(e). The rule requires reasonable belief that: (1) information is not privileged; (2) evidence is essential; and (3) there's no other feasible alternative. See Downie v. Super. Ct., 888 P.2d 1306 (Alaska Ct. App. 1995). In Arizona, there are typically other ways to establish whether defendant had notice of a court date.

ER 3.8(f) permits statements necessary to inform the public of the prosecutor's action that serve legitimate law enforcement purposes. But prosecutors must avoid extrajudicial comments with substantial likelihood of heightening public condemnation. A press release about an indictment is likely proper but should inform, not inflame. The prosecutor should always include that a charge is not evidence of guilt and the person is presumed innocent. The prosecutor should avoid commenting on a defendant's guilt, evidence strength, character, or racial motivations.

No. Prosecutors may not comment on post-arrest or post-Miranda silence as evidence of guilt. State v. Ramirez, 178 Ariz. 116, 125 (1994); State v. Schrock, 149 Ariz. 433, 438 (1986). When defendant doesn't testify, it's improper to comment on this silence.

Prosecutors must not:

• Engage in abusive conduct. Pool v. Super. Ct., 139 Ariz. 98, 103 (1984).
• Be vindictive. State v. Smith, 122 Ariz. 50, 51 (App. 1979).
• Vouch for the State. State v. Dumaine, 162 Ariz. 392, 401 (1992).
• Engage in name-calling of a defendant or defense counsel. State v. Hughes, 193 Ariz. 72, 86 (1998).

When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood the defendant didn't commit the offense, the prosecutor must:

• Promptly disclose to the court, prosecutorial authority, and defendant's counsel (or defendant and indigent defense appointing authority if unrepresented).
• If the conviction was in prosecutor's jurisdiction, make reasonable efforts to investigate or refer to appropriate authorities.

The standard is "reasonable likelihood" of innocence, not absolute certainty. Example: if someone comes forward a year later claiming responsibility and the information is consistent with the defendant's original police statement, this should be disclosed even if you don't find the witness entirely credible. Your subjective assessment doesn't eliminate the duty.

When a prosecutor knows of clear and convincing evidence that a defendant in the prosecutor's jurisdiction didn't commit the offense, the prosecutor must take appropriate steps, including giving notice to the victim, to set aside the conviction. This is a higher standard than ER 3.8(g), requiring "clear and convincing evidence" before a prosecutor must act, not merely "reasonable likelihood."