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Prof Responsibility • Candor
PR#082
Legal Definition
A prosecutor in a criminal case has 9 affirmative duties:
(1) Refrain from prosecuting a charge they know is not supported by probable cause
(2) Make reasonable efforts to ensure the accused has been advised of the right to and procedure for obtaining counsel, and has been given an opportunity to do so
(3) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights
(4) Make timely disclosure to the defense of exculpatory evidence and mitigating circumstances
(5) Exercise reasonable care to prevent investigators and other law enforcement personnel from engaging in extrajudicial statements (i.e., pretrial publicity) that the prosecutor would be barred from making
(6) Refrain from issuing a subpoena to an attorney in a criminal proceeding to give evidence about a client unless the prosecutor reasonably believes the information is not protected by privilege, the evidence is essential to an ongoing investigation or prosecution, and there is no feasible alternative
(7) Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and serve a legitimate law enforcement purpose
(8) Promptly disclose new, credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense
(9) Seek to remedy a conviction when the prosecutor knows of clear and convincing evidence the defendant was convicted for an offense they did not commit
(1) Refrain from prosecuting a charge they know is not supported by probable cause
(2) Make reasonable efforts to ensure the accused has been advised of the right to and procedure for obtaining counsel, and has been given an opportunity to do so
(3) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights
(4) Make timely disclosure to the defense of exculpatory evidence and mitigating circumstances
(5) Exercise reasonable care to prevent investigators and other law enforcement personnel from engaging in extrajudicial statements (i.e., pretrial publicity) that the prosecutor would be barred from making
(6) Refrain from issuing a subpoena to an attorney in a criminal proceeding to give evidence about a client unless the prosecutor reasonably believes the information is not protected by privilege, the evidence is essential to an ongoing investigation or prosecution, and there is no feasible alternative
(7) Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and serve a legitimate law enforcement purpose
(8) Promptly disclose new, credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense
(9) Seek to remedy a conviction when the prosecutor knows of clear and convincing evidence the defendant was convicted for an offense they did not commit
Plain English Explanation
In the United States, all criminal defendants are considered innocent until proven guilty beyond a reasonable doubt. Prosecutors have a lot of power and influence on establishing that guilt and making sure they do not violate any laws or legal rights while doing so. This means following 9 key duties:
(1) Prosecute Only with Probable Cause: Prosecutors should not bring charges against someone unless there is enough evidence to show that a crime probably occurred. This prevents innocent people from being wrongfully accused.
(2) Ensure the Accused Knows Their Rights: The prosecutor must make sure that the accused knows they have the right to a lawyer and how to get one. This is important because legal representation can make a significant difference in the outcome of a case.
(3) Avoid Waivers from Unrepresented Defendants: If a person does not have a lawyer, the prosecutor cannot ask them to give up important legal rights before trial, like the right to a fair hearing or the right to remain silent. This rule helps protect people from making decisions that could harm their case without fully understanding the consequences.
(4) Disclose Exculpatory Evidence: Prosecutors must share any evidence with the defense that might show the accused is not guilty or that could lessen the severity of the crime. This is critical for ensuring a fair trial. This may seem weird if you view their job as purely winning, but keep in mind that their job is to punish people who actually did a crime, not just whoever so-happens to be the defendant.
(5) Limit Public Statements: Prosecutors must be careful about what they say to the media. They can't make statements that would unfairly sway public opinion against the accused before the trial. This helps prevent a trial by media, where public opinion could influence the fairness of the judicial process.
(6) Be Careful with Subpoenas: Prosecutors should avoid forcing lawyers to testify against their clients unless it is absolutely necessary and no other option is available. This respects the confidentiality between a lawyer and their client.
(7) Prevent Public Condemnation: Similar to limiting public statements, prosecutors must avoid making comments outside of court that could create a public backlash against the accused unless it's necessary for public safety or to explain the prosecutor's actions.
(8) Disclose New Evidence After Conviction: If new evidence surfaces that suggests someone who has already been convicted might be innocent, the prosecutor has to disclose this information. This duty ensures that justice is served even after a case is closed.
(9) Correct Wrongful Convictions: If a prosecutor finds clear and convincing evidence that someone was wrongfully convicted, they must take steps to correct this injustice. This might mean working to overturn the conviction, regardless of how much time has passed.
(1) Prosecute Only with Probable Cause: Prosecutors should not bring charges against someone unless there is enough evidence to show that a crime probably occurred. This prevents innocent people from being wrongfully accused.
(2) Ensure the Accused Knows Their Rights: The prosecutor must make sure that the accused knows they have the right to a lawyer and how to get one. This is important because legal representation can make a significant difference in the outcome of a case.
(3) Avoid Waivers from Unrepresented Defendants: If a person does not have a lawyer, the prosecutor cannot ask them to give up important legal rights before trial, like the right to a fair hearing or the right to remain silent. This rule helps protect people from making decisions that could harm their case without fully understanding the consequences.
(4) Disclose Exculpatory Evidence: Prosecutors must share any evidence with the defense that might show the accused is not guilty or that could lessen the severity of the crime. This is critical for ensuring a fair trial. This may seem weird if you view their job as purely winning, but keep in mind that their job is to punish people who actually did a crime, not just whoever so-happens to be the defendant.
(5) Limit Public Statements: Prosecutors must be careful about what they say to the media. They can't make statements that would unfairly sway public opinion against the accused before the trial. This helps prevent a trial by media, where public opinion could influence the fairness of the judicial process.
(6) Be Careful with Subpoenas: Prosecutors should avoid forcing lawyers to testify against their clients unless it is absolutely necessary and no other option is available. This respects the confidentiality between a lawyer and their client.
(7) Prevent Public Condemnation: Similar to limiting public statements, prosecutors must avoid making comments outside of court that could create a public backlash against the accused unless it's necessary for public safety or to explain the prosecutor's actions.
(8) Disclose New Evidence After Conviction: If new evidence surfaces that suggests someone who has already been convicted might be innocent, the prosecutor has to disclose this information. This duty ensures that justice is served even after a case is closed.
(9) Correct Wrongful Convictions: If a prosecutor finds clear and convincing evidence that someone was wrongfully convicted, they must take steps to correct this injustice. This might mean working to overturn the conviction, regardless of how much time has passed.
Hypothetical
Hypo 1: Bob is a prosecutor handling a high-profile murder case. During trial preparation, Bob learns of a witness, Sam, who claims to have seen someone else commit the crime. However, Bob believes Sam is unreliable and decides not to disclose this information to the defense. Result: Bob has violated his duty to disclose exculpatory evidence to the defense. Even if Bob doubts Sam's credibility, he must disclose this potentially exculpatory evidence and allow the defense to evaluate it. Withholding this information deprives the defendant of a fair trial.
Hypo 2: Bob is prosecuting Sam for drug trafficking. Before Sam has obtained a lawyer, Bob approaches him and tries to convince him to waive his right to a preliminary hearing, telling Sam it will speed up the process. Result: Bob has violated his duty not to seek waivers of important pretrial rights from unrepresented defendants. Bob should not be approaching Sam without counsel present to discuss waiving rights, as this takes advantage of Sam's lack of legal representation.
Hypo 3: Bob is prosecuting a controversial case that has garnered significant media attention. In a TV interview, Bob states: "We have overwhelming evidence of the defendant's guilt. He's clearly a dangerous criminal who needs to be locked up." Result: Bob has violated his duty to refrain from making extrajudicial statements that could prejudice the accused. His statements go beyond simply informing the public about the case and could unfairly influence potential jurors.
Hypo 4: Years after successfully prosecuting Sam for murder, Bob learns of new DNA evidence strongly suggesting Sam's innocence. Bob decides not to disclose this, thinking Sam was probably guilty of other crimes anyway. Result: Bob has violated his duties to promptly disclose new evidence of innocence and to seek to remedy clear wrongful convictions. Bob's personal beliefs about Sam's character are irrelevant; he has an ethical obligation to bring this evidence to light.
Hypo 5: Bob wants to subpoena Sam's former lawyer to testify about conversations with Sam that Bob believes are relevant to an ongoing fraud investigation. The conversations aren't privileged because they involved Sam asking the lawyer for advice on committing future crimes. Result: This scenario likely does not violate Bob's ethical duties. While prosecutors face restrictions on subpoenaing attorneys regarding client matters, here the conversations aren't protected by attorney-client privilege due to the crime-fraud exception. As long as Bob reasonably believes the evidence is essential and there's no feasible alternative, he can likely proceed with the subpoena.
Hypo 2: Bob is prosecuting Sam for drug trafficking. Before Sam has obtained a lawyer, Bob approaches him and tries to convince him to waive his right to a preliminary hearing, telling Sam it will speed up the process. Result: Bob has violated his duty not to seek waivers of important pretrial rights from unrepresented defendants. Bob should not be approaching Sam without counsel present to discuss waiving rights, as this takes advantage of Sam's lack of legal representation.
Hypo 3: Bob is prosecuting a controversial case that has garnered significant media attention. In a TV interview, Bob states: "We have overwhelming evidence of the defendant's guilt. He's clearly a dangerous criminal who needs to be locked up." Result: Bob has violated his duty to refrain from making extrajudicial statements that could prejudice the accused. His statements go beyond simply informing the public about the case and could unfairly influence potential jurors.
Hypo 4: Years after successfully prosecuting Sam for murder, Bob learns of new DNA evidence strongly suggesting Sam's innocence. Bob decides not to disclose this, thinking Sam was probably guilty of other crimes anyway. Result: Bob has violated his duties to promptly disclose new evidence of innocence and to seek to remedy clear wrongful convictions. Bob's personal beliefs about Sam's character are irrelevant; he has an ethical obligation to bring this evidence to light.
Hypo 5: Bob wants to subpoena Sam's former lawyer to testify about conversations with Sam that Bob believes are relevant to an ongoing fraud investigation. The conversations aren't privileged because they involved Sam asking the lawyer for advice on committing future crimes. Result: This scenario likely does not violate Bob's ethical duties. While prosecutors face restrictions on subpoenaing attorneys regarding client matters, here the conversations aren't protected by attorney-client privilege due to the crime-fraud exception. As long as Bob reasonably believes the evidence is essential and there's no feasible alternative, he can likely proceed with the subpoena.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
What must a lawyer do if they know that their witness intends to lie in their testimony?
