Litigation & Advocacy · 10-16% of the exam
15.3.1Pre-Conviction Duties (Rule 3.8(a)–(f))
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- Rule 3.8(a)–(f) — Pre-conviction duties of the prosecutor
A prosecutor's mission is justice, not conviction. Rule 3.8(a)–(f) sets those floors.
Why
A prosecutor chooses the target, holds the evidence, and has no client able to push back. Everyone else in the courtroom is disciplined by an opponent; the prosecutor's power is disciplined largely by the prosecutor. Rule 3.8 supplies the floors that adversarial pressure on its own would not produce.
Plain English
Don't prosecute a charge you know probable cause doesn't support. Make reasonable efforts to see the accused is told of the right to counsel and how to obtain it and given a reasonable opportunity to do so, and don't seek an unrepresented accused's waiver of an important pretrial right — a bar that doesn't reach an accused appearing pro se with the tribunal's approval, and doesn't forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.
Make timely disclosure to the defense of all evidence or information known to you that tends to negate guilt or mitigate the offense; at sentencing, unprivileged mitigating information goes to the defense and the tribunal unless a protective order relieves you.
Subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client only on a reasonable belief:
- that the information is unprivileged,
- that the evidence is essential to the successful completion of an ongoing investigation or prosecution, and
- that there is no other feasible alternative.
And don't make comments substantially likely to heighten public condemnation of the accused, except comments needed to keep the public informed about the scope and character of your action that also serve a legitimate law-enforcement purpose; use reasonable care to keep investigators, law-enforcement staff, and other assisting persons from making statements you could not make yourself.
Rule
Rule 3.8(a)–(f) — Pre-conviction duties of the prosecutor
A prosecutor in a criminal case shall:
(a) Refrain from prosecuting a charge the prosecutor knows is not supported by probable cause. "Knows" is actual knowledge, not suspicion; the duty attaches at filing, and a later conviction on other evidence does not cure a filing made with knowledge of insufficient facts.
(b) Make reasonable efforts to assure that the accused has
- received notice of the right to counsel,
- been told how counsel may be secured, and
- been given a reasonable window in which to secure counsel.
(c) Not seek a waiver of any important pretrial right (e.g., the preliminary-hearing right) from an unrepresented accused. Comment [2] states two limits on (c):
- it does not apply to an accused appearing pro se with the approval of the tribunal, and
- it does not forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.
(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 — the ethical codification of the Brady duty. At sentencing, that turnover expands: all mitigating material not covered by privilege goes both to the defense and to the tribunal, subject to one carve-out — a protective order from the tribunal relieves the prosecutor of the duty. Disclosing to defense only at sentencing is the tested gap. "Timely" means as soon as reasonably practicable, so the defense can make meaningful use of the evidence in deciding such things as whether to plead guilty and how to conduct its investigation (ABA Formal Opinion 09-454). Once disclosed, defense counsel, not the prosecutor, decides what to do with the evidence.
(e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes all three of the following:
- The information is not protected by privilege;
- The evidence is essential to the successful completion of an ongoing investigation or prosecution; and
- There is no other feasible alternative.
(f) Not make extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused. Investigators, law-enforcement staff, and other assisting persons must also be kept — through reasonable care — from making statements the prosecutor personally could not make. Exception: comments needed to keep the public informed about the scope and character of the prosecutor's action, provided they serve a legitimate law-enforcement purpose.
Example 1
Ex. 1
Ray is a federal prosecutor handling a robbery case. Two weeks before trial, the primary eyewitness recants and fingerprint analysis shows no match. That eyewitness was the whole of the case on identity, so Ray knows the charge is no longer supported by probable cause. Ray considers both results weak and inadmissible, withholds them, and presses forward on personal belief in guilt. Both choices violate Rule 3.8: prosecuting a charge Ray knows probable cause no longer supports is what prong (a) forbids; the fingerprint result triggers the Brady duty in prong (d), which requires disclosure regardless of Ray's view of weight or admissibility. Park Ray's opinion of the evidence outside the question and read prong (d) again.
Example 2
Ex. 2
Kim is a county prosecutor. Strong eyewitness testimony and her own conviction point to guilt. Post-arrest toxicology shows the defendant's blood type does not match trace evidence at the scene, a potential innocence indicator. Kim concludes the report is flawed and unlikely to be admissible, and withholds it from the defense. Her belief in guilt and her admissibility assessment are irrelevant. Rule 3.8(d) is unconditional: known information tending to negate guilt must go to the defense. Believing the defendant guilty doesn't authorize suppression. Strip Kim's conclusions out of the facts and see what's left that the defense didn't get.
Trap
Questions · 2
Q 01ch15-e08
Question 1 of 2 · Rule 3.8(a)
Prosecutor filed an illegal-dumping charge against Defendant on the strength of a single night-time photograph said to show Defendant's tanker truck parked at a creek. The charge rested on solid probable cause when it was filed. Four months later the county's own imaging technician reported in writing that the plate in the photograph belonged to a truck sold out of state two years earlier, and that no other frame showed Defendant or the truck. Prosecutor read the report, left the charge on the calendar, and took the case to trial on the same photograph. The jury acquitted. Is Prosecutor subject to discipline?
Keys 1 to 4 choose.