Prosecutorial Ethics with 100% correct answers.

3 Levels of Evidentiary Proof 1. Probable Cause 2. Sufficient Admissible Evidence 3. Proof Beyond a Reasonable Doubt Probable Cause oReasonable trustworthy information sufficient to warrant a prudent person in believing that the crime at issue was committed by the named defendant. Not concerned with admissibility Very low bar When is it ok to charge only on PC? π Flight Risk π Danger to Community Sufficient Admissible Evidence oThe threshold for surviving a motion for required finding of not guilty at the end of government's case (Directed Verdict). The Q under this standard is whether, viewing evidence expected to be admitted in the light most favorable Gov, Gov will have sufficient evidence at trial to establish each element of the crime charged. - Inadmissible evidence not permitted Proof Beyond a Reasonable Doubt oUSAO standard - Must believe there is a reasonable likelihood of a conviction based on admissible evidence. -Exception for political considerations (Sheriff Joe example) When is it ok to charge only on Probable Cause? Always "allowed" but probably shouldn't unless: 1. Flight Risk 2. Danger to Community Charging considerations o the nature and severity of the offense, and the public safety danger posed by the defendant's conduct, o the need to deter others from similar behavior, o the defendant's criminal history, o the recommendations of the victim and law enforcement agents, o the likelihood of conviction, and o the availability and effectiveness of noncriminal dispositions to address the conduct at issue Vindictiveness o A prosecutor may not charge the defendant with a crime to punish him for the exercise of constitutional or statutory rights. Where a defendant alleges that the prosecutor discharged in retaliation for his political views, he bears the burden of proving: (1) that he was engaged in protected speech or activity; and (2) that the state's conduct was motivated in part by a purpose to retaliate against or deter that protected conduct. -If defendant can prove both elements, the burden shifts to the prosecution to prove that he would have reached the same charging decision even have a protected activity not been considered. Overcharging •3.8 does not bar overcharging so long as the charge is supported by PC o However, ABA CJS & NDAA standards condemn the practice of overcharging solely to gain leverage. -Prosecutor should not use as leverage the dismissal of a charge that he would otherwise not pursue or he doesn't believe he can convict. Initiating Investigation •There are no ethical constraints on the decision to initiate an investigation into alleged criminal activity. • ABA CJS & USAOM suggest prosecutors should not commence a criminal investigation based upon personal feelings about target or based on personal or political advantages to be gained by prosecution. o In other words, prosecutor should investigate crimes, not people. • Generally speaking, EP guarantee of 5th & 14th Ams. prohibit prosecutor from deciding who to investigate or prosecute based on a suspect classification. o However, selective prosecution claims are difficult to prove. One must show: Discriminatory Effect: that persons of other races, religions, or genders were equally subject to prosecution but were not charged; and Discriminatory Purpose: the prosecutor actually made his charging decision on the basis of defendant's race, sex, or religion. General Grand Jury Principles o A prosecutor should always seek to preserve the independence of the GJ as the deliberative body. o The prosecutor must take adequate steps to preserve the secrecy of the GJ proceedings. • In federal court, D has a right to be charged by indictment for all capital, or otherwise infamous crimes. • Indictments are not required in all states. o 23 jurors; only 12 need to be present for quorum. • May issue indictment if majority of members present find PC to believe D has committed crime in question. • Serves as a mechanism for investigating crimes & for deciding what charges to bring against D. • Rules of evidence do not apply....except those pertaining to testimonial privilege. Hearsay at Grand Jury Hearsay is permitted in GJ but you must make clear the hearsay nature of the evidence. Purpose of Grand Jury Subpoena Only reason should be used is to assist sitting GJ in deciding whether & who to indict. Power of Grand Jury Subpoena GJ Subs are very powerful o Have the power to force attendance of witnesses who otherwise may be unwilling to cooperate in a criminal investigation o Can force production of docs that may not be discoverable by search warrant due to lack of precise information regarding scope or location of the records. o Backed up by the court's power to hold the witness in contempt & prosecutor's power to charge witness with perjury. o Never get suppressed -No irrelevance objection Inappropriate Uses of Grand Jury Subpoena • It's improper for a prosecutor to subpoena docs or tangible evidence to the GJ & then never mark material as an exhibit for the GJ examination. • It's inappropriate for the prosecutor to use the power of a GJ subpoena for purposes of preparing for trial. Witness Rights at Grand Jury • Prosecutor may subpoena suspect to testify in front of GJ, but cannot compel him to incriminate himself. • No constitutional right to counsel during GJ stage of criminal investigation. • Prosecutor Does not have to read him his rights o But USAOM suggests telling him his rights if he does not have an attorney. o If you know he is likely to take the 5th, then USAOM says not to call him at all. Grand Jury Witness is Suspect o ABA CJS: if the prosecutor believes that a witness is a potential defendant, the prosecutor should not seek to compel witness's testimony before the GJ without informing the witness that he or she may be charged and that the witness should seek independent legal advice concerning his or her rights. o USAOM: suggests that whenever a witness is either a potential target or subject of the GJ's investigation, the witness should be informed on the record before the GJ, at the outset of his testimony, of: (1) the subject matter of the GJ's investigation; (2) witnesses right to refuse to answer any questions that may have a tendency to incriminate him; (3) the fact that the government may use any statements the witness provides against the witness at any subsequent legal proceeding; and (4) that the witness has a right to obtain and consult counsel if he so desires. • Some states have adopted rules requiring target warnings in the GJ. o In jurisdictions that do not require target warnings, prosecutor must take great caution not to mislead a GJ witness about his target status. Subpoenas to Attorneys Rule 3.8(e) restricts the power of the prosecutor to subpoena an attorney to provide information about the attorneys past and present clients: o A prosecutor shall not subpoena a lawyer in a GJ or other criminal proceeding to present evidence about the past or present client unless the prosecutor reasonably believes that: • the information is not privileged; • the information sought from the attorney is essential to the successful completion of an ongoing investigation or prosecution; and • there is no other feasible alternative to obtain the information other than through counsel. This prevents the government from driving a wedge between a defendant and his counsel by attempting to elicit incriminating information about the defendant. - About half the states now restrict issuing subpoenas to attorneys in criminal investigations. - This restriction applies even if the attorney represented the defendant in a civil, or even a completely unrelated, matter. Exculpatory Evidence at Grand Jury • Federal Prosecutors have no legal duty to present exculpatory evidence at the GJ stage-including substantially exculpatory evidence. • A prudent prosecutor should make the GJ aware of highly probative evidence that would completely exonerate target • USAOM: prosecutor should present any exculpatory evidence. • A number of states impose an obligation of prosecutors to disclose to the GJ substantial exposure for evidence that directly negates the guilt of the target. o AZ: Must present exculpatory evidence... don't have to look for it though. Policy supporting Grand Jury Secrecy o prevents the escape of those whose indictment may be imminent; o insurers the GJ freedom from attempted influence; o discourages subordination of perjury or tampering with witnesses who may be called to testify; encourages full and free disclosures by persons subpoenaed; and o protects innocent persons from suffering unnecessary damage to the reputation should they not be indicted at the end of the inquiry. Off the Record Comments by Prosecutor to Grand Jury o It is inappropriate for the prosecutor to instruct the stenographer to go off the record when he's eliciting testimony from a witness or counseling GJ. o The prosecutor's communications and presentations to the GJ should always be on record. Prosecutor Advising Grand Jury • Prosecutors are authorized to act as legal advisors to the GJ. o Prosecutor may properly instruct them on the elements of crimes under investigation, an answer and legal questions they have about the evidence. o However, Prosecutor must avoid stating his personal opinions about the evidence, the credibility of any witnesses, or the strength of the charges. Horse Shedding When the prosecutor suggests that the witness testified in a particular manner and then they rehearse that scripted testimony. o Prosecutors should avoid this practice. o It is not improper for a prosecutor to advise the witness on appropriate demeanor and presentation skills, or even to suggest to the witness that he or she use certain language to convey the witness's version of pertinent facts. However, Prosecutor should always be mindful that it is the witness's version of events that controls. The prosecutor must avoid attempts to strong-arm a witness to testify a particular way. Defense Access to State Witnesses It is improper for a prosecutor to impede D's access to witnesses. o D has the right to attempt to interview a witness the state intends to call at trial, if the witness wishes to be interviewed. Prosecutor may make a request of the witness that he be present at any interview, but it is ultimately up to the witness. o A prosecutor should never advise a witness not to talk to D, counsel, or investigator for D. -This could be considered an ethical & constitutional violation Communicating with Unrepresented Person The model rules require that wherever there is a reasonable possibility of an unrepresented person's interest conflicting with the interests of the lawyer's client, the lawyer shall not give legal advice to that unrepresented person other than the advice to secure counsel. Prosecutor may not state or imply that he is a disinterested party Where prosecutor perceives that unrepresented person is confused about the prosecutor's role, the prosecutor has an affirmative duty to make reasonable efforts to correct the misunderstanding. Communicating with Pro Se Defendant o A prosecutor may speak directly to and negotiate with, a pro se defendant, but he may never give legal advice, including on the advisability or consequences of defendant's actions, to a pro se defendant other than to secure his own counsel. No Contact Rule Model Rule 4.2- Communication with Person Represented by Counsel: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. o The prosecutor cannot indirectly contact the defendant, such as writing and a letter or even copying him on a letter sent to defense counsel. -Only waivable by Attorney, not witness. Policy: o Encourages professional courtesy by requiring permission before engaging another lawyer's client o Prevents a lawyer, through overreaching or superior bargaining power, from tricking a witness to making damaging admissions or concessions without their lawyer's knowledge. o Discourages waivers of the attorney-client privilege. When Defendant Initiates Communication with Prosecutor o D who approaches a prosecutor after a court session & asks for information about his case, or asks to speak with the prosecutor about future proceedings, or seeks to voluntarily reveal information to the prosecutor about the circumstances of the crime, must be told unequivocally by the prosecutor that he cannot speak to D without the lawyer's permission. o A prosecutor cannot talk to D who initiates convo about cooperation & waives presence & advice of atty, unless D either obtains a new attorney, prosecutor obtains judicial permission to talk to D without counsel being present. The prosecutor should bring D before the judge in an ex parte proceeding for the court to determine whether: 1. D knowingly & voluntarily waived his right to counsel for the purposes of the requested interview; and 2. whether allowance of the interview without D's lawyer's consent would be consistent with the purposes and policies behind the no contact rule. No Contact Rule (corporations) Narrow View ρ Only high level executives who are members of the corporate control group directing the litigation are off-limits to interviews without corporate councils consent Broad View ρ Any corporate employee whose statement would be binding on the corporation as an admission (generally any employee making a statement about activities within the scope of his corporate duties) is presumed to be represented by corporate counsel for purposes of the no contact, unless they are undertaking separate representation. ABA middle ground ρ Forbids contact with three classes of corporate employees absent permission of corporate counsel: employees whose acts or omissions are directly at issue in the litigation employees who have management or supervisory authority over the above-described employees high level executives who regularly consult with corporate counsel (i.e. the control group) -Former employees are generally not represented by corporate counsel for purposes of the no contact. Represented Persons v Parties Must go through counsel for permission to contact an ordinary witness who retains a lawyer to advise him during the criminal procedure. -Includes victims who are suing in civil court. Target Hasn't yet Been Charged, but has Retained Counsel May prosecutors and their investigative agents continue to conduct undercover ops on a suspect prior to charging but after the suspect lawyered up? π Recording undercover convos with a represented person in a criminal investigation is not prohibited by the no contact rule if no charges have been filed. Policy: ρ No contact was not intended to restrict the State's ability to ferret out crime through otherwise accepted investigative techniques. ρ Prior to charging, the matter is not fully crystallized so the State has no ability to discern the precise scope of the lawyer's representation. May police interview a suspect prior to indictment w/out permission of his counsel? π Most courts have ruled that pre-charging police interviews are "authorized by law." π The parameters of the "matter" for which the defendant is represented cannot have crystalized prior to initiation of criminal charges. π The No Contact Rule has no application whatsoever in pre-indictment criminal investigations π Police are also not bound by Rule 4.2. Inculpatory & Exculpatory Evidence •Inculpatory Evidence: Evidence the prosecutor intends to use to link D to the crime •Exculpatory Evidence: Evidence that is helpful to the defendant because it could be used to prove that the defendant did not commit the alleged offense. (Any evidence that provides some significant aid to D's case, whether it furnishes corroboration of D's story, calls into question a material, although not indispensable, element of the prosecution's version of the offense, or challenges the credibility of the key prosecution witness.) -Through discovery the prosecutor has an obligation to disclose all inculpatory and exculpatory evidence Brady v Maryland Suppression by the prosecution of evidence favorable to the accused upon request violates due process -Where a judge is required to sentence the defendant within a predefined range unless he finds the presence or absence of mitigating or aggravating circumstances, any circumstance known by the prosecutor to mitigating must be disclosed to the defense, even if it does not suggest legal or factual innocence. -Gov must disclose to the defendant any promises, rewards, or inducements made to a government witness in exchange for his testimony -Facts known to the police will be imputed to the prosecutor for Brady purposes, whether or not the prosecutor had actual knowledge of them. -There is no constitutional error unless the nondisclosed evidence is so significant that it produces a reasonable probability of a different verdict at trial. "Material" Evidence under Brady If there is a reasonable probability that, had the evidence been disclosed to D, result of the proceeding would have been different. •3 factors that courts will typically examine to determine whether undisclosed evidence was "material" under Brady are: o the importance of the evidence withheld o the strength of the government's case aside from the exculpatory material o other sources of defense avail & utilized by D -There is no constitutional error unless the nondisclosed evidence is so significant that it produces a reasonable probability of a different verdict at trial. Exculpatory Evidence Before Plea The prosecutor is under no constitutional obligation under Brady to disclose certain types of exculpatory evidence before guilty plea. However, Preservation of Evidence Brady and its progeny, in some circumstances, impose an obligation on law enforcement not only to disclose but also to preserve exculpatory evidence. • The due process clause may be violated where the government destroys evidence that potentially may have been exculpatory, before the importance or significance of the evidence can be assessed by the accused. o The destruction of evidence by the government might in other circumstances amount to a due process violation where two conditions are established: Potential exculpatory value of the evidence was apparent to the government before the evidence was destroyed & The defendant was unable to obtain comparable evidence by other reasonably available means Model Rule 3.8: Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) 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 obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a GJ or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. (g) When a prosecutor 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, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, i. promptly disclose that evidence to the defendant unless a court authorizes delay, and ii. undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.