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Ohio Legal Ethics Narrative
Ohio Rule 3.8 imposes three special duties on a prosecutor in a criminal case. They are discussed in the sections beginning with section 3.8:200.
For a review of the special duties of prosecutors nationally, see Laws. Man. on Prof. Conduct (ABA/BNA) §§ 61:601-:630 (1997).
With regard to unsuccessful argument by federal prosecutors in the 1980s that they were not subject to state ethics rules, see discussion in ABA, Annotated Model Rules of Professional Conduct 371-72 (6th ed. 2007) (commentary) and in section 4.2:220 infra.
Ohio Rule 3.8 differs from the Model Rule in the following respects:
The introductory language has been changed from "The prosecutor in a criminal case shall:" to "The prosecutor in a criminal case shall not do any of the following:".
Division (a) deletes "refrain from prosecuting" at the outset and substitutes "pursue or prosecute".
Divisions (b) and (c) have been reserved; paragraphs (b) and (c) of the Model Rule are not included.
In division (d) "fail to" has been added at the outset; "fail to" has been added before "disclose"; "and to the tribunal" has been deleted after "defense"; "an" has been substituted for "a protective" before "order".
In division (e), the word "not" has been deleted at the outset; "all of the following apply" has been added after "believes".
Division (f) has been reserved; paragraph (f) of the Model Rule has not been included.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.8(a): DR 7-103(A).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.8(d): DR 7-103(B), EC 7-13.
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.8(e): None.
[The Table also refers to division (g); there is no division (g).]
- Primary Ohio References: Ohio Rule 3.8(a)
- Background References: ABA Model Rule 3.8(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.64
- Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.3
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.64 (1996).
Ohio Rule 3.8(a) precludes a prosecutor in a criminal case from "pursu[ing] or prosecut[ing] a charge that the prosecutor knows is not supported by probable cause." To do so is an abuse of authority and is subject to sanction, as it was under former DR 7-103(A). See Stark County Bar Ass'n v. Russell, 25 Ohio St.3d 124, 495 N.E.2d 430 (1986) (public prosecutor disciplined for threatening criminal prosecution to gain advantage in civil matter in violation of OH DR 7-105(A) and for initiating criminal proceedings unsupported by probable cause in violation of OH DR 7-103(A)). A public prosecutor can proceed in good faith, however, to prosecute a case to conclusion even while recognizing that acquittal is likely, as long as the case is supported by probable cause. State v. Comstock, 79 Ohio App.3d 414, 607 N.E.2d 520 (Lucas 1992). Accord State v. Wright, No. 94- J-33, 1996 Ohio App. LEXIS 3482 (Jefferson Aug. 15, 1996). But note that under OH Crim R 12(K), if an appeal by the state from an order suppressing or excluding evidence results in an affirmance, the defendant cannot be prosecuted for the same offense unless there is a showing of newly discovered evidence that could not with reasonable diligence have been discovered prior to the filing of the appeal.
The language of division (a), directing that the prosecutor shall not "pursue or prosecute" a charge known to be unsupported by reasonable cause, clearly includes but reaches beyond the focus of former DR 7-103(A) upon "institut[ing] or caus[ing] to be instituted" such a charge. Obviously, the pursuit or prosecution of an action does not end with its institution, and thus the prohibition applies throughout the case, from beginning to end, including grand jury proceedings. As the Rule recognizes, there is simply no justification for proceeding in any phase of the case if the prosecutor "knows" that probable cause is lacking. Accord Comment , discussing the prosecutor's role as "a minister of justice," whose responsibilities "carr[y] with it specific obligations to see that the defendant is accorded justice and that guilt is decided on the basis of sufficient evidence." Rule 3.8 cmt. . The ABA Model Code Comparison to Rule 3.8 further notes that division (a) "is expanded to prohibit either the pursuit or prosecution of unsupported charges and, thus, would include grand jury proceedings." See also former OH EC 7-14 (government lawyer should "refrain from ...continuing litigation that is obviously unfair").
An eloquent summation of the special ethical obligations of a prosecutor was penned by Justice Sutherland in Berger v. United States, 259 U.S. 78 (1935) – the prosecutor
is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
Id. at 88.
- Primary Ohio References: None
- Background References: ABA Model Rule 3.8(b)
- Commentary: ABA/BNA § 61:605, ALI/LGL § 97, Wolfram § 13.10
There is no Ohio Rule 3.8(b). MR 3.8(b) obligates the prosecutor to
make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to retain counsel.
The explanation given by the Task Force in the ABA Model Rule Comparison to Rule 3.8 states that division (b) "is deleted because ensuring that the defendant is advised about the right to counsel is a police and judicial function and because Rule 4.3 sets forth the duties of all lawyers in dealing with unrepresented persons." We think that this explanation is unpersuasive and that the omission is unfortunate. Even though a Miranda notice may be the business of the police, surely it does no harm to engage prosecutors in assuring that the constitutional mandate is satisfied. As for Rule 4.3, the obligations there stated hardly satisfy the special responsibilities operative in this particular criminal context. Finally, the deletion of division (b) results in a missed opportunity, taken in many Model Rule states, to further safeguard an accused's right to counsel.
- Primary Ohio References: None
- Background References: ABA Model Rule 3.8(c)
- Commentary: ABA/BNA § 61:611, ALI-LGL § 97, Wolfram § 13.10
As is the case with MR 3.8(b), MR 3.8(c) has been deleted; in the words of the Task Force, "because of its breadth and potential adverse impact on defendants who seek continuances that would be beneficial to their case or who seek to participate in diversion programs." Model Rule Comparison to Rule 3.8. With all due respect, this reason for rejecting the Model Rule is wanting. The Model Rule does not constrain prosecutors from securing such waivers where the accused seeks the waiver, particularly where it is done for a legitimate strategic reason. If necessary, one would have thought that these benefits could easily have been preserved as exceptions, while retaining the obligation not to seek from an unrepresented defendant "a waiver of important pretrial rights, such as the right to a preliminary hearing." MR 3.8(c). Ohio is one of only four Model Rule states that have deleted paragraph (c).
While we have found no OHCPR authority directly on point, there is one Board of Commissioner's ethics opinion condemning comparable conduct by a prosecutor, even where the defendant was represented. Bd. of Comm'rs on Grievances & Discipline Op. 2001-6, 2001 Ohio Griev. Discip. LEXIS 7 (Dec. 7, 2001).
In Opinion 2001-6, the Board opined that it is unethical "for a prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a plea agreement that waives the defendant's appellate or post-conviction claims of ineffective assistance of trial counsel or prosecutorial misconduct." Id. at *1. On the waiver of prosecutorial misconduct aspect, the Board, quoting former OH DR 7-103 and OH EC 7-13, had this to say:
Prosecutorial misconduct may involve violations of disciplinary rules that may come to the judge's attention and be reported to disciplinary authorities pursuant to Canon 3(D)(2) of the Code of Judicial Conduct [OH CJC Canon 3(D)(2)] and DR 1-103(A). A prosecutor should not attempt through a plea agreement to excuse himself or herself from following disciplinary rules governing a prosecutor's behavior. A prosecutor does not serve justice by attempting to shield his or her past or future misconduct from scrutiny by obtaining a criminal defendant's waiver of appellate or post-conviction claims based on allegations of prosecutorial misconduct. This Board's view is that waiver of appellate or post-conviction claims of prosecutorial misconduct is an improper attempt to insulate the prosecutor from his or her duties under DR 7-102, 7-103, and DR 1-102(A)(5) of the Ohio Code of Professional Responsibility.
Id. at *6-7. Compare Burke v. Johnson, 167 F.3d 276 (6th Cir. 1999) (affirming dismissal of § 1983 action against police; enforcing oral release/dismissal agreement entered into by county prosecutor and defense counsel on behalf of criminal defendant, whereby defendant agreed to plead guilty to reduced charges in exchange for release of any civil claims against police arising from arrest; preponderance of evidence demonstrated that agreement was entered into voluntarily, defendant was represented by experienced counsel who discussed agreement with defendant, and agreement was read into record by prosecutor before judge at plea hearing, was stipulated to on record by defense counsel, and was agreed to on record by defendant; standards for enforcement of such agreements set forth in Town of Newton v. Rumery, 480 U.S. 386 (1987), satisfied). As to release/dismissal agreements, see also ABA, Annotated Rules of Professional Conduct 374-75 (6th ed. 2007) (commentary).
- Primary Ohio References: Ohio Rule 3.8(d)
- Background References: ABA Model Rule 3.8(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.65
- Commentary: ABA/BNA § 61:606, ALI-LGL § 97, Wolfram § 13.10.5
The material in this section is excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.65 (1996).
Ohio Rule 3.8(d) prohibits prosecutors involved in criminal litigation from failing to make timely disclosure to the defense of exculpatory evidence, known to the prosecutors, that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, from failing to disclose to the defense all known unprivileged mitigating information, except where the prosecutor is relieved of his 3.8(d) obligations by an order of the tribunal. As stated in Comment , this exception allows a prosecutor to seek such an order if disclosure of information to the defense could result in substantial harm to an individual or the public interest. Rule 3.8 cmt.  (See also OH Crim R 16(B)(1)(f), providing for comparable disclosure in discovery, on motion of defendant. For a case in which an argument under OH Crim R 16(B)(1(f) was rejected, see State v. Keene, 81 Ohio St.3d 646, 693 N.E.2d 246 (1998) (rule's language "material either to guilt or punishment" has same meaning as identical language in Brady v. Maryland, 373 U.S. 83 (1963), and is limited to exculpatory, mitigating, or impeachment evidence; defendant's attempt to use Rule 16 to obtain evidence of discriminatory prosecution not within stated limits).)
Like Ohio Rule 3.8(d), the OHCPR analog (OH DR 7-103(B)) mentioned only disclosure to "counsel for the defendant." However, there is at least one case that can be read as extending the 7-103(B) disclosure requirement to judges and tribunals as well. Thus, in Office of Disciplinary Counsel v. Jones, 66 Ohio St.3d 369, 613 N.E.2d 178 (1993), a prosecutor who found previously lost evidence was suspended for six months for failing to deliver the evidence to the court and to tell defense counsel and the judge that the evidence had been found. The uncertainty in the case arises from the fact that multiple disciplinary rules were found to have been violated (including conduct prejudicial to the administration of justice), and the Court does not clearly allocate the misconduct to a particular rule. Without referring to the Jones case, the Task Force in its Model Code Comparison to Rule 3.8 states that division (d) "is modified [by deleting "and to the tribunal" with respect to mitigation evidence] to comport with Ohio law." The situation is further confounded by the fact that the missing evidence in Jones could have gone either to negation of guilt or mitigation or both. All in all, particularly given the Task Force's statement, the most likely interpretation is that the prosecutor's 3.8(d) duty is to defense counsel, period. (The failure to so advise the court may well implicate other rules, such as Rule 3.3 ("Candor Toward the Tribunal").) Failure to disclose to defense counsel evidence that the alleged victim suffered from a multiple personality disorder also violated the former Code provision. State v. Cotton, 113 Ohio App.3d 125, 680 N.E.2d 657 (Hamilton 1996) (Painter, J. concurring; calling on the prosecutor to study OH DR 7-103(B) before retrial, in light of his failure to follow it). The problem was exacerbated in Cotton by the fact that the prosecutor also suggested to the alleged victim's social worker, who knew of the multiple personality disorder, that she not speak with defense counsel.
A disciplinary case involving a flagrant violation of former OH DR 7-103(B) is Office of Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 2003 Ohio 3288, 790 N.E.2d 1195. In Wrenn, an assistant county prosecutor failed to inform the court and opposing counsel of his knowledge of DNA testing results that were favorable to the defense, and the Court stated as follows:
Respondent breached his duties as an officer of the court and his public responsibility as an assistant prosecutor. He had ethical and legal obligations to disclose discoverable information that was relevant, exculpatory, and not privileged and he failed to do so on more than one occasion. We do not accept respondent's assertion that it was an innocent misrpresentation. When the court inquired about the DNA test results at the pretrial, respondent failed to disclose that he had knowledge that the testing was complete and the results were favorable to [defendant].
Id. at ¶ 21. Despite the strong words, Wrenn received only a six-month suspension, all stayed. Chief Justice Moyer and Justice Pfeifer dissented on the sanctions issue; that aspect of the case is further discussed in section 8.4:400, at "Misconduct in the judicial process."
The obligation that the disclosure be "timely" apparently has been construed by only one state court of last resort. In In re Attorney C, 47 P.3d 1167 (Colo. 2002) (en banc), the court held that to be "timely" under MR 3.8(d), the disclosure of exculpatory evidence of which the prosecutor has knowledge prior to any critical stage of the proceeding (here, a preliminary hearing) must be made before that stage of the proceeding takes place. See ABA, Annotated Model Rules of Professional Conduct 375-76 (6th ed. 2007) (commentary).
The responsibility to make timely disclosure of exculpatory evidence arises only when the evidence and its exculpatory nature is "known" to the prosecutor. Without such knowledge, failure to disclose does not violate Rule 3.8(d), although, if the underlying conduct is egregious, it may still be treated as conduct prejudicial to the administration of justice. See, under the former OHCPR, Cuyahoga County Bar Ass'n v. Gerstenslager, 45 Ohio St.3d 88, 543 N.E.2d 491 (1989); State v. Holt, 132 Ohio App.3d 601, 725 N.E.2d 1155 (Hamilton 1997) (Painter, J.) (prosecutor not only had duty under OH DR 7-103(B) to disclose any promises made to a witness but also to find out if any promises had been made; in case at bar prosecutor claimed no knowledge of any promises and record failed to reflect that prosecuting witnesses were offered any promises for their testimony; thus "the record simply does not demonstrate any breach of that duty in this case." Id. at 609, 725 N.E.2d at 1161.).
Although the prosecutor may not suppress evidence that would benefit the defendant's case, the Rule places no affirmative duty on the prosecutor to gather evidence for the accused. But cf. the Holt case, above, where the court, while finding on the record presented no breach of the OH DR 7-103(B) duty by the prosecutor, noted that the prosecutor had an affirmative duty to determine if promises had been made to state witnesses and "cannot claim 'personal ignorance' on the subject." 132 Ohio App.3d at 609, 725 N.E.2d at 1160-61. (Former OH EC 7-13, while placing no duty on a prosecutor to gather evidence, did admonish that "a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution's case or aid the accused.") Cf. State v. Urrego, 41 Ohio App.2d 124, 322 N.E.2d 688 (Monroe 1974) (finding no due-process requirement to gather evidence for defendant).
Nondisclosure of exculpatory evidence by a prosecutor is seldom policed by the disciplinary process, but instead is dealt with by the trial courts in applying a similar requirement imposed on the prosecutor as an aspect of constitutionally-required due process, known as the Brady doctrine (Brady v. Maryland, 373 U.S. 83 (1963) (due process violated when, after request by defense for any statements made by co-defendant, the prosecution failed to disclose co-defendant's confession to murder for which defendant was convicted)), which requires the prosecutor to disclose to defendants favorable evidence that is material to guilt or punishment. Kyles v. Whitley, 514 U.S. 419 (1995). To be material, the evidence must be such that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985); accord Kyles, 514 U.S. 419. Where the prosecutor fails to provide information in response to a specific request for it, that may be particularly misleading to the defense and hence more likely to have had an impact on the case's outcome. Bagley, 473 U.S. 667. See also Giglio v. United States, 405 U.S. 150 (1972), where a unanimous Court held that due process was violated by the government's failure to disclose that it had promised the sole eye-witness that he would not be prosecuted in return for his testifying for the government. Not surprisingly, this nondisclosed evidence was found material, given the critical nature of the witness's testimony, which in turn made the issue of his credibility all the more important. "[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor." Id. at 154. For a more complete discussion of the Brady doctrine both nationally and in Ohio, see 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 24.3(b) (3d ed. 2007); 2 Lewis R. Katz, Paul C. Giannelli, Beverly J. Blair & Judith P. Lipton, Baldwin's Ohio Practice, Katz Giannelli Criminal Law ch. 50 (2d ed. 2003 & Supp. 2007). An Ohio case finding violation of Brady is State v. Brown, 115 Ohio St.3d 55, 2007 Ohio 4837, 873 N.E.2d 858 (failure to disclose police reports implicating as guilty persons other than defendants in death-sentence murder case). See also State v. Lewis, 70 Ohio App.3d 624, 591 N.E.2d 854 (Lawrence 1990) (state's failure to preserve "potentially useful evidence" did not violate due process).
- Primary Ohio References: None
- Background References: ABA Model Rule 3.8(f)
- Commentary: ALI-LGL § 97
Ohio has not adopted MR 3.8(f), which, insofar as relevant here, provides that a prosecutor be responsible for certain extrajudicial statements of law enforcement personnel and other nonlawyers involved in the prosecutorial function. To the extent the nonlawyer personnel are employed, retained, or associated with the prosecutor, the prosecutor may still be responsible for their improper extrajudicial statements in certain situations under Ohio Rule 5.3(c). See section 5.3:400.
Further as to MR 3.8(f), see section 3.8:800 below.
- Primary Ohio References: Ohio Rule 3.8(e)
- Background References: ABA Model Rule 3.8(e)
Rule 3.8(e) precludes a prosecutor from directing a subpoena to a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client, unless
the prosecutor reasonably believes that all of the following apply:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the disclosure sought is essential to the successful completion of an ongoing investigations or prosecution;
(3) there is no other feasible alternative to obtain the information.
As is apparent from this language, division (e) "is intended to limit" such subpoenas to those situations in which "there is a genuine need to intrude into the client-lawyer relationship." Rule 3.8 cmt. .
For discussion of the issue generally, see 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 34.8 (3d ed. Supp. 2009); ABA Annotated Model Rules of Professional Responsibility 376-77 (6th ed. 2007) (commentary). See also 2 Restatement (Third) of the Law Governing Lawyers § 97, reporter's note to cmt. h (2000).
- Primary Ohio References: None
- Background References: ABA Model Rule 3.8(f)
- Commentary: ABA/BNA § 61:609, ALI-LGL § 109, Wolfram § 12.2.2
MR 3.8(f), which precludes a prosecutor from making certain extrajudicial statements, has been deleted "because a prosecutor, like all lawyers, is subject to Rule 3.6." ABA Model Code Comparison to Rule 3.8. But the Model Rule choice of making MR 3.8(f) applicable to prosecutors, in addition to the general prohibitions of 3.6, reinforces the notion that extra safeguards are important in the prosecution context. We think the deletion of MR 3.8(f) is a mistake.
In Bd. of Comm'rs on Grievances & Discipline Op. 88-25, 1988 Ohio Griev. Discip. LEXIS 8 (Dec. 16, 1988), the Board opined that while a prosecutor was subject to former OH DR 7-107(A) (now Rule 3.6(a))with respect to pending matters, the rule did not apply to completed criminal investigations. Thus, on completion of the investigation, a prosecutor was permitted to explain why criminal charges had not been authorized. See also In re Grand Jury Investigation, 23 Ohio App.3d 159, 492 N.E.2d 459 (Cuyahoga 1985), where the court held that reiteration by a prosecutor of remarks made in open court did not violate what was then OH DR 7-107(A)(1). The 7-107(A)(1) provision (permitting extrajudicial statements that did no more than state without elaboration information in public record), was analogous to what is now the exception contained in Rule 3.6(b)(2) (information contained in public record). See sections 3.6:200-:400.
- Primary Ohio References: None
- Background References: None
While Ohio prohibits certain discriminatory conduct by lawyers, see Rule 8.4(g), we are unaware of any Ohio ethics decisions or advisory opinions on the subject of discrimination in the use of peremptory challenges of jurors by prosecutors. The general Ohio law on peremptory challenges, which is beyond the scope of this ethics narrative, may be found at OH Crim R 24(D) & (E) and cases cited thereunder.
The federal constitutional implications relating to peremptory challenges by the prosecution are set forth in Batson v. Kentucky, 476 U.S. 79 (1986) (Equal Protection Clause violated by exercise of peremptory strike solely on basis of race); and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (same result if state strikes are based solely on gender; paternity/child support case). For cases applying the J.E.B. gender rule to the prosecution's use of peremptory challenges in criminal cases, see, e.g. Simon v. Mississippi, 513 U.S. 956 (1994); Cleveland v. Arkansas, 511 U.S. 1080 (1994). Similar restrictions apply in civil suits as well. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
- Primary Ohio References: None
- Background References: ABA Model Rule 3.8(g), (h)
In February 2008, the ABA House of Delegates approved the addition of paragraphs (g) and (h) to MR 3.8. Pursuant to these provision, a prosecutor who knows of
new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted
shall (1) disclose that evidence promptly to the appropriate court or authority and (2), if the conviction occurred in the prosecutor’s jurisdiction, (A) promptly disclose the evidence to the defendant unless there is a court-authorized delay and (B) undertake, or cause to be undertaken, further investigation to determine whether the defendant was wrongly convicted. MR 3.8(g). If the prosecutor has clear and convincing evidence that a defendant was wrongly convicted in a court in the prosecutor’s jurisdiction, “the prosecutor shall seek to remedy the conviction.” MR 3.8(h).
In addition to the new paragraphs, related Comments , , and  were also added to MR 3.8. Comment  reiterates the prosecutor’s obligation under paragraph (g) and further notes that the obligation to notify the defendant must be made through the defendant’s lawyer; if the defendant is unrepresented, the disclosure ordinarily would be accompanied by a request to a court for appointment of counsel to assist the defendant in taking appropriate action.
With respect to paragraph (h), Comment  states that “necessary steps” to remedy the conviction
may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant, and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.
Comment  provides a safe harbor to a prosecutor whose independent judgment that evidence is insufficient to trigger paragraphs (g) or (h) is subsequently proved to be erroneous, provided that judgment was exercised in good faith.
So far as we are aware, neither Ohio nor any other state has taken steps to incorporate paragraphs (g) or (h) and the accompanying comments into its Rules of Professional Conduct. The new Model Rule provisions are discussed in 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 34.10 (3d ed. Supp. 2009).