Bar Exam (Uniform) Quiz: Disclosure Obligations
20 questions · exam conditions
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Disclosure ObligationsQuestion 1 of 20

Withheld evidence was cumulative; guilt evidence was overwhelming. Which is true?

Withholding always reverses
No violation if not material
Material only if requested
Bad faith creates materiality
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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Disclosure Obligations

Practice Disclosure Obligations in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Disclosure Obligations, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

Withheld evidence was cumulative; guilt evidence was overwhelming. Which is true?

  1. Withholding always reverses
  2. No violation if not material (correct answer)
  3. Material only if requested
  4. Bad faith creates materiality
Explanation: Cumulative evidence and overwhelming guilt mean the withheld evidence wouldn't create a reasonable probability of a different outcome, so it isn't material and there's no Brady violation. The tempting mistake is thinking bad faith makes any withholding reversible; bad faith doesn't override the materiality requirement and won't flip a trial where guilt is overwhelming.

Question 2

Prosecutor withheld a witness's statement that could reduce defendant's sentence. Which is true?

  1. Duty extends to sentencing (correct answer)
  2. Only guilt evidence counts
  3. No duty to disclose mitigation
  4. Defendant must show innocence
Explanation: Prosecutors must disclose evidence favorable to the defense that is material to guilt or punishment, so the duty reaches mitigation at sentencing. A withheld statement that could reduce the defendant's sentence is exactly what Brady covers. The tempting error is thinking only guilt-phase evidence counts, but materiality applies to sentencing as well; the defendant need not show innocence.

Question 3

Defense never asked; prosecutor hid a witness's immunity deal. Which is true?

  1. No duty without any request
  2. Only knowing concealment works
  3. Violation if deal was material (correct answer)
  4. Deals are never Brady evidence
Explanation: A prosecutor must disclose a witness's immunity deal if it is material to guilt or punishment, even without a defense request. The deal can show bias and affect credibility, so hiding it can violate Brady/Giglio. The tempting error is 'no duty without any request' - but material evidence must be turned over regardless of whether you ask.

Question 4

Police never told prosecutor that the key witness recanted. Which is true?

  1. No duty; he lacked knowledge
  2. Recantation is not favorable
  3. Police reports aren't Brady
  4. Police knowledge imputed (correct answer)
Explanation: The prosecutor's Brady duty covers evidence known to the police, even if they never told the prosecutor. A key witness's recantation is favorable and material because it undermines the prosecution's case, so it must be disclosed. The tempting mistake is thinking the prosecutor had no duty because he lacked personal knowledge; that ignores the prosecution team's collective knowledge.

Question 5

Prosecutor never read a lab report clearing defendant. Which is true?

  1. No duty; he had no knowledge
  2. Negligence can still violate (correct answer)
  3. Only purposeful hiding counts
  4. Defense must have requested
Explanation: The prosecution's duty extends to favorable evidence held by its team even if you personally never read it. A negligent failure to disclose exculpatory lab results can violate due process if the evidence is material. The tempting mistake is thinking no knowledge means no duty, but prosecutors must learn what is in their files and disclose.

Question 6

Police investigate a robbery and prepare a photo array containing a picture of the defendant. They show the array to the victim, who states, 'I think it's number four, but I'm only 70% sure.' The defendant is number four. The detective notes this lack of certainty in his handwritten notes but, in the official typed report given to the prosecutor, he simply writes 'Victim identified the defendant.' The prosecutor, relying on the typed report, does not disclose the victim's statement of uncertainty. The defendant is convicted.

  1. No violation occurred because the prosecutor did not know about the detective's notes and was entitled to rely on the official report.
  2. A violation occurred, but the only remedy is a new trial if the detective is found to have acted in bad faith.
  3. No violation occurred because the victim did, in fact, identify the defendant, and his level of certainty goes to weight, not admissibility.
  4. A violation occurred because the victim's lack of certainty is material impeachment evidence that was known to the police. (correct answer)
Explanation: When you encounter questions about prosecutorial disclosure obligations, think immediately about Brady v. Maryland and the duty to disclose material exculpatory evidence. This duty extends to impeachment evidence that could undermine the prosecution's case. The correct answer is D because the victim's expression of uncertainty ("I'm only 70% sure") constitutes material impeachment evidence that was known to someone in the prosecution team. Under Brady, prosecutors have a constitutional obligation to disclose material evidence favorable to the defense, including impeachment evidence that could cast doubt on witness credibility. The prosecution team includes police officers working on the case, so the detective's knowledge is imputed to the prosecutor. The victim's uncertainty about the identification is clearly material because eyewitness identification is often central to the prosecution's case. Answer A is wrong because prosecutorial knowledge includes knowledge possessed by police officers investigating the case - the prosecutor cannot avoid Brady obligations by claiming ignorance of what the police knew. Answer B incorrectly suggests that bad faith is required for a Brady violation and limits the remedy. Brady violations can occur regardless of the prosecutor's good or bad faith, and various remedies are available depending on the materiality of the withheld evidence. Answer C mischaracterizes the issue - while the victim did make an identification, his expressed uncertainty is separate impeachment evidence that goes beyond mere "weight" and could affect the jury's assessment of the identification's reliability. Remember: Brady obligations extend to all material impeachment evidence known to anyone on the prosecution team, regardless of the prosecutor's actual knowledge or intent.

Question 7

A defendant is convicted of murder largely on the testimony of a jailhouse informant who claimed the defendant confessed to him. After conviction, it is revealed that the prosecutor failed to disclose that this informant had provided information in ten prior cases, and in three of those cases, the information was later proven to be false. The prosecutor argues the non-disclosure was not material because the jury was told the informant was receiving a sentence reduction for his testimony.

  1. The non-disclosure was not a Brady violation because the jury was already aware the informant was biased due to his plea deal.
  2. The non-disclosure was a Brady violation because the informant's history of providing false information is powerful impeachment evidence. (correct answer)
  3. The non-disclosure was not a Brady violation because information from other, unrelated cases is not relevant.
  4. The non-disclosure was a Brady violation only if the defense made a specific pre-trial request for the informant's history.
Explanation: The correct answer is B. The informant's history of fabricating information is significant impeachment evidence that goes beyond the general bias shown by a plea deal. This evidence directly attacks the informant's credibility and reliability. A is incorrect because while the jury knew of one source of bias, the undisclosed evidence showed a pattern of untruthfulness, which is qualitatively different and highly material. C is incorrect because the informant's past conduct as an informant is highly relevant to his credibility in the present case. D is incorrect because the Brady duty for obviously material evidence exists even without a specific request from the defense.

Question 8

A defendant is on trial for murder. His defense is that he was at home with his mother at the time of the crime. The mother testifies to this alibi. In rebuttal, the prosecution calls a police officer who testifies that, on the night of the crime, he interviewed the mother and she never mentioned that her son was with her. The defendant is convicted. Later, it is discovered that the prosecution failed to disclose a portion of the officer's interview notes where the mother stated, 'My son was here, but I'm not a snitch and I'm not talking to you.'

  1. This was not a Brady violation because the mother's statement was self-serving and cumulative of her trial testimony.
  2. This was a Brady violation, but it is harmless error because the jury likely would not have believed the mother's alibi anyway.
  3. This was not a Brady violation because the mother is a defense witness, and Brady only applies to prosecution witnesses.
  4. This was a Brady violation because the undisclosed statement directly impeached the police officer's rebuttal testimony. (correct answer)
Explanation: Brady v. Maryland requires prosecutors to disclose exculpatory evidence that is material to the defense. This applies to any evidence that either tends to prove innocence or impeaches prosecution witnesses, regardless of whether the evidence seems duplicative of other testimony. Here, the undisclosed portion of the officer's notes directly contradicted his rebuttal testimony. The officer testified that the mother "never mentioned" her son was with her, but his own notes showed she actually did say "My son was here." This creates a material impeachment issue because the prosecution used the officer's incomplete testimony to undermine the defendant's alibi defense. The fact that the mother also refused to cooperate doesn't negate that she did mention the alibi—exactly contradicting what the officer told the jury. Answer A is wrong because Brady violations aren't limited to non-cumulative evidence. Even if evidence seems duplicative, it can still be material if it impeaches prosecution testimony. Answer B incorrectly applies harmless error analysis—while Brady violations can sometimes be harmless, this evidence directly contradicted key rebuttal testimony that attacked the defense's main argument. Answer C misunderstands Brady's scope. The obligation to disclose applies to all exculpatory evidence, regardless of which side calls the witness. The evidence here impeached the prosecution's own witness. Remember that Brady violations occur when prosecutors fail to disclose evidence that either helps the defense case or hurts the prosecution's case. Impeachment of prosecution witnesses always falls into this category, even when the underlying facts might seem to support the defense through other testimony.

Question 9

A defendant is charged with criminal fraud for selling counterfeit goods. The government's primary evidence comes from a confidential informant (CI) who made a controlled buy from the defendant. The prosecutor does not disclose that the CI is being paid a fee by the police that is contingent on the defendant's conviction. The prosecutor believes this is not required because the CI's identity is confidential and he will not testify at trial.

  1. The prosecutor is correct because the identity of the CI is privileged, and thus information about him need not be disclosed.
  2. The prosecutor is correct because Brady only applies to testifying witnesses.
  3. The prosecutor is incorrect because the contingent fee arrangement is material impeachment evidence that must be disclosed. (correct answer)
  4. The prosecutor is incorrect only if the CI provides the sole evidence of the crime.
Explanation: The correct answer is C. The fact that an informant is being paid on a contingent-fee basis is powerful impeachment evidence, as it gives the informant a direct financial incentive to ensure the defendant is convicted, regardless of guilt. This information is material and favorable to the defense and must be disclosed under Brady. A is incorrect because the privilege protecting a CI's identity is not absolute and can be overcome, but more importantly, the prosecutor must disclose the impeachment information even if the CI's identity is not revealed. B is incorrect because Brady applies to any material exculpatory or impeachment evidence, regardless of whether the source of that information testifies. The information could be used, for example, to challenge the integrity of the police investigation.

Question 10

You are defending a client in a complex white-collar crime case. The prosecution's case relies on the testimony of a forensic accountant. You file a specific discovery request for 'all materials related to the qualifications and potential biases' of the accountant. The prosecutor, who knows the accountant has been sanctioned by a professional board for falsifying data in a past civil case, fails to disclose this information. Your client is convicted.

  1. This is a Brady violation, and the prosecutor's failure to respond to a specific request may constitute bad faith.
  2. This is not a Brady violation if the sanction occurred in a civil case, as only criminal convictions are relevant for impeachment.
  3. This is a Brady violation, but the materiality standard is the same regardless of whether the defense made a specific request. (correct answer)
  4. This is not a Brady violation because professional sanctions are matters of public record that the defense could have found on its own.
Explanation: The correct answer is C. The undisclosed information about the expert witness is classic, material impeachment evidence. The failure to disclose it is a Brady violation. Under current Supreme Court precedent (United States v. Bagley), the standard for materiality is the same for all Brady claims: whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. The fact that the defense made a specific request does not lower this standard, although it may affect the analysis of the prosecutor's conduct. A is incorrect because while specific requests may evidence bad faith, they do not change the materiality standard. B is incorrect because prior acts of dishonesty are highly relevant for impeachment, regardless of the civil/criminal context. D is incorrect because while some public records are outside Brady, it is not reasonable to expect the defense to search every professional board's records without a tip, and the prosecutor's knowledge triggers a duty to disclose.

Question 11

A defendant is prosecuted for securities fraud. The government's case is complex, involving thousands of pages of documents. A key government witness is the defendant's former business partner. Before trial, the prosecution provides all 50,000 pages of its documentary evidence to the defense in a searchable electronic format. Buried on page 35,721 is an email from the business partner to a third party that contains a statement directly contradicting his expected trial testimony. The prosecutor does not specifically point out this email. The defendant is convicted.

  1. The prosecutor committed a Brady violation by hiding the exculpatory email within a massive document dump.
  2. The prosecutor did not commit a Brady violation because the email was made available to the defense before trial. (correct answer)
  3. The prosecutor only committed a Brady violation if the defense can prove the email was intentionally placed to avoid discovery.
  4. The prosecutor did not commit a Brady violation because the defense had an equal opportunity to find the email.
Explanation: The correct answer is B. Generally, there is no Brady violation if the defendant has access to the evidence and could have discovered it through reasonable diligence. When the prosecution provides the evidence in discovery, even in a large volume of material, the evidence is not considered 'suppressed.' The defense has a duty to review the materials provided. While intentionally hiding a 'needle in a haystack' could be misconduct, simply providing a large volume of documents, especially in a searchable format, does not constitute suppression under Brady. Therefore A and C are incorrect. D is a good restatement of the underlying principle making B correct.

Question 12

A defendant is convicted of bribery. After the trial, his attorney learns that the prosecution's star witness, who testified against the defendant, had previously failed a polygraph examination administered by the FBI concerning the same bribery scheme. The prosecutor did not disclose the polygraph results, believing them to be inadmissible in court. In the relevant jurisdiction, polygraph results are per se inadmissible for any purpose at trial.

  1. This is a Brady violation because the results, though inadmissible, could have led the defense to other admissible evidence. (correct answer)
  2. This is not a Brady violation because polygraph results are unreliable and inadmissible.
  3. This is a Brady violation because the prosecutor intentionally suppressed evidence that undermined her witness's credibility.
  4. This is not a Brady violation because the FBI, as a federal agency, is not part of the state prosecution team.
Explanation: The correct answer is A. The key principle is that Brady material need not be admissible itself, as long as it is reasonably likely to lead to the discovery of admissible evidence. Even if the polygraph result itself cannot be mentioned in court, it would have been a powerful investigative tool for the defense, signaling that the witness was deceptive and prompting further investigation into his story that could have uncovered admissible impeachment evidence. B is incorrect because inadmissibility is not dispositive for Brady purposes. C is incorrect because the prosecutor's intent is irrelevant. D is incorrect because if a federal agency like the FBI is working with the state on the investigation, it becomes part of the prosecution team for Brady purposes.

Question 13

A defendant is convicted of murder largely on the testimony of a jailhouse informant who claimed the defendant confessed to him. After conviction, it is revealed that the prosecutor failed to disclose that this informant had provided information in ten prior cases, and in three of those cases, the information was later proven to be false. The prosecutor argues the non-disclosure was not material because the jury was told the informant was receiving a sentence reduction for his testimony.

  1. The non-disclosure was not a Brady violation because the jury was already aware the informant was biased due to his plea deal.
  2. The non-disclosure was a Brady violation because the informant's history of providing false information is powerful impeachment evidence. (correct answer)
  3. The non-disclosure was not a Brady violation because information from other, unrelated cases is not relevant.
  4. The non-disclosure was a Brady violation only if the defense made a specific pre-trial request for the informant's history.
Explanation: The correct answer is B. The informant's history of fabricating information is significant impeachment evidence that goes beyond the general bias shown by a plea deal. This evidence directly attacks the informant's credibility and reliability. A is incorrect because while the jury knew of one source of bias, the undisclosed evidence showed a pattern of untruthfulness, which is qualitatively different and highly material. C is incorrect because the informant's past conduct as an informant is highly relevant to his credibility in the present case. D is incorrect because the Brady duty for obviously material evidence exists even without a specific request from the defense.

Question 14

A defendant is prosecuted for securities fraud. The government's case is complex, involving thousands of pages of documents. A key government witness is the defendant's former business partner. Before trial, the prosecution provides all 50,000 pages of its documentary evidence to the defense in a searchable electronic format. Buried on page 35,721 is an email from the business partner to a third party that contains a statement directly contradicting his expected trial testimony. The prosecutor does not specifically point out this email. The defendant is convicted.

  1. The prosecutor committed a Brady violation by hiding the exculpatory email within a massive document dump.
  2. The prosecutor did not commit a Brady violation because the email was made available to the defense before trial. (correct answer)
  3. The prosecutor only committed a Brady violation if the defense can prove the email was intentionally placed to avoid discovery.
  4. The prosecutor did not commit a Brady violation because the defense had an equal opportunity to find the email.
Explanation: The correct answer is B. Generally, there is no Brady violation if the defendant has access to the evidence and could have discovered it through reasonable diligence. When the prosecution provides the evidence in discovery, even in a large volume of material, the evidence is not considered 'suppressed.' The defense has a duty to review the materials provided. While intentionally hiding a 'needle in a haystack' could be misconduct, simply providing a large volume of documents, especially in a searchable format, does not constitute suppression under Brady. Therefore A and C are incorrect. D is a good restatement of the underlying principle making B correct.

Question 15

A defendant was convicted of murder. The prosecution's case was based entirely on circumstantial evidence. After the conviction, the defendant's appellate counsel discovered that a detective on the case had received an anonymous tip suggesting a known local drug dealer may have committed the crime. The detective followed up on the tip but was unable to substantiate it and did not include it in the official case file given to the prosecutor. The prosecutor was never aware of the tip.

  1. No Brady violation occurred because the prosecutor was not personally aware of the anonymous tip.
  2. No Brady violation occurred because an unsubstantiated anonymous tip is not material evidence.
  3. A Brady violation occurred because the detective was an agent of the state, and his knowledge is imputed to the prosecutor. (correct answer)
  4. A Brady violation occurred only if the defendant can now prove that the drug dealer actually committed the crime.
Explanation: The correct answer is C. The Brady disclosure obligation extends to material evidence known to police investigators, even if the prosecutor is not personally aware of it. The police are part of the 'prosecution team,' and their knowledge is imputed to the prosecutor. A is incorrect for this reason. B is incorrect because in a purely circumstantial case, a tip pointing to an alternative suspect is likely to be considered material, as it could create reasonable doubt. It is for the defense to investigate and use, not for the police to unilaterally dismiss as unsubstantiated. D states too high a burden; the defendant must show a reasonable probability of a different outcome, not prove another's guilt.

Question 16

A defendant was convicted of robbery based on the testimony of a single eyewitness. After the trial, the defendant's attorney discovered that the prosecutor was aware that the eyewitness had a prior conviction for perjury. The prosecutor did not disclose this conviction to the defense, believing it was from 15 years ago and would be inadmissible for impeachment purposes. The prior conviction was, in fact, inadmissible under the jurisdiction's rules of evidence due to its age.

  1. Yes, because the prosecutor's good faith belief about admissibility is irrelevant to the disclosure obligation. (correct answer)
  2. No, because the prior conviction was inadmissible and therefore could not have been used by the defense at trial.
  3. Yes, because all prior convictions of a key government witness must be disclosed, regardless of admissibility.
  4. No, because the prosecutor's failure to disclose was not intentional, but rather based on a legal conclusion.
Explanation: The correct answer is A. Under Brady v. Maryland, the prosecution has a duty to disclose material exculpatory and impeachment evidence. The prosecutor's good or bad faith is irrelevant to whether a violation occurred. While the evidence itself might have been inadmissible, the disclosure could have led the defense to discover other admissible evidence or pursue a different trial strategy. The duty to disclose is broader than the rules of admissibility. B is incorrect because Brady is not limited to admissible evidence; it includes information that could lead to the discovery of admissible evidence. C is too absolute; the core requirement is materiality. D is incorrect because the prosecutor's intent or motive does not negate a Brady violation.

Question 17

You are representing a client charged with felony assault. The prosecution's case rests on the testimony of the victim and one other witness. During pre-trial discovery, the prosecutor provides you with the witness's criminal record, which is clean. Two weeks before trial, the witness is arrested for an unrelated felony insurance fraud charge. The prosecutor is aware of the arrest but does not inform you. Your client is convicted. You learn of the witness's arrest after the trial.

  1. The prosecutor had no duty to disclose the arrest because a mere arrest is not a conviction and cannot be used for impeachment.
  2. The prosecutor's duty was satisfied by providing the witness's official criminal record, which did not yet reflect the recent arrest.
  3. The prosecutor violated the disclosure obligation because the pending charge could have been used to show the witness's bias or motive to cooperate with the government. (correct answer)
  4. The prosecutor only would have had a duty to disclose the arrest if the witness had entered into a formal cooperation agreement in exchange for leniency.
Explanation: The correct answer is C. Evidence that can be used for impeachment is subject to disclosure under Brady. A pending criminal charge against a key prosecution witness is classic impeachment material because it can be used to show that the witness has a motive to curry favor with the prosecution. A is incorrect because while a mere arrest is often inadmissible to attack general credibility, it is admissible to show bias or motive to lie. B is incorrect because the prosecutor's duty is ongoing and not satisfied by a single, static disclosure. D is incorrect because the potential for bias exists even without a formal agreement; the witness's hope for leniency is enough to create a motive the defense is entitled to explore.

Question 18

A defendant is charged with battery. He claims self-defense. The defendant and the alleged victim were the only two people present. During trial preparation, the prosecutor learns that the victim has a history of initiating bar fights, a fact not reflected in the victim's criminal record. The prosecutor decides this is inadmissible character evidence and does not disclose it. The defendant is convicted.

  1. This is a Brady violation because the victim's history is material evidence that would have supported the defendant's self-defense claim. (correct answer)
  2. This is not a Brady violation because the victim's prior bad acts are generally inadmissible as propensity evidence.
  3. This is not a Brady violation because the information was not in the official police file and the prosecutor has no duty to investigate a victim's background.
  4. This is a Brady violation only if the prior fights resulted in criminal convictions for assault.
Explanation: The correct answer is A. When a defendant claims self-defense, evidence of the victim's violent character can be admissible to show that the victim was the first aggressor. Therefore, the victim's history of starting fights is material, exculpatory evidence that supports the defendant's claim. The prosecutor's duty is to disclose this information, not to unilaterally decide its admissibility. B is incorrect because there is an exception to the prohibition on character evidence for this exact purpose. C is incorrect because once the prosecutor has knowledge of material exculpatory evidence, she must disclose it, regardless of its source. D is incorrect because the evidence of aggression is relevant even if it did not result in convictions.

Question 19

A defendant was convicted of arson. The prosecution's key evidence was testimony from a fire inspector who concluded the fire was intentionally set. Midway through the trial, the prosecutor disclosed to the defense a preliminary report from the same inspector in which he had initially labeled the cause as 'undetermined.' The defense attorney reviewed the report during a short recess but did not cross-examine the inspector about it. On appeal, the defendant claims a Brady violation.

  1. There is no violation because the defense attorney waived the issue by failing to cross-examine the inspector on the report.
  2. There is no violation because the prosecutor ultimately disclosed the information before the end of the trial.
  3. There is a violation because the delayed disclosure prejudiced the defendant's ability to effectively use the evidence. (correct answer)
  4. There is a violation because all Brady material must be disclosed before the trial begins.
Explanation: The correct answer is C. The constitutional requirement is not just disclosure, but disclosure at a time when the defense can make effective use of the evidence. Disclosing a critical report mid-trial may be a violation if it prejudices the defense by, for example, not allowing enough time to re-evaluate strategy, consult an expert, or prepare an effective cross-examination. A is incorrect because the failure to use the evidence effectively may be a result of the late disclosure itself, not a waiver. B is incorrect because the timing of the disclosure matters. D is incorrect because there is no rigid rule that disclosure must always occur before trial, although it is the standard practice; the constitutional standard is effective use.

Question 20

A defendant pleaded guilty to possession of a controlled substance with intent to distribute. Before the plea, his attorney had reviewed the state's evidence, which appeared strong. One year later, the defendant learned that the prosecutor had failed to disclose a lab report indicating that the purity of the drugs seized was extremely low, making them nearly worthless. This fact would have been highly relevant to the 'intent to distribute' charge and could have supported a plea to simple possession.

  1. The defendant has no remedy, because his guilty plea waived all pre-trial constitutional claims, including Brady violations.
  2. The defendant's only remedy is a claim of ineffective assistance of counsel for not specifically requesting purity analysis reports.
  3. The defendant can seek to withdraw his plea because the prosecutor's non-disclosure rendered the plea involuntary and unintelligent. (correct answer)
  4. The defendant can seek to withdraw his plea only if he can prove that the prosecutor intentionally hid the lab report to induce the plea.
Explanation: The correct answer is C. The Supreme Court has held that Brady disclosure obligations apply to the plea-bargaining process. The failure to disclose material exculpatory or impeachment evidence that would have likely led a defendant to reject a plea offer can render the subsequent plea involuntary. A is incorrect because a Brady violation that affects the voluntariness of the plea is not waived. B is incorrect because the primary constitutional error is the prosecutor's, not counsel's. D is incorrect because the prosecutor's intent is irrelevant to the analysis.