Ethics Opinion 16-1: When Defense Counsel Must Turn Over Material to the Prosecution

Question: The Ethics Counselors of the National Association for Public Defense (NAPD) have
been asked to address the following scenario:

An investigator working for Defense Counsel obtained a copy of a DVD from an in-store surveillance system recording the scene of an alleged crime. This tape became the only existing copy of the DVD, as the store subsequently destroyed the original pursuant to a retention policy that provided for erasure and re-use of discs every 30 days. The Prosecution – having never attempted to obtain the DVD prior to the original’s destruction – demanded that Defense Counsel turn over her copy of the DVD.

Is Defense Counsel ethically obligated to turn over her copy of the DVD:

1. When she becomes aware that the original recording is unavailable to the
   prosecutor, regardless of whether the prosecution requests or demands it;
2. When an informal, direct request is made by the prosecutor; or
3. When a formal discovery request or lawful subpoena follows an informal
   request?