Special responsibilities of a prosecutor (Rule 3.8)

Special Coverage

Last October, the State Bar sent to the Supreme Court Proposed Rule 5-110. This rule was sent on its own, well in advance of the package of proposed rule changes sent earlier this year. The proposed rule is nearly verbatim to ABA Rule 3.8: Special Responsibilities of a Prosecutor.

Current Rule 5-110 is the only rule that addresses prosecutors to the exclusion of all other attorneys. (Current Rule 5-220 regarding suppression of evidence and Rule 5-120 regarding trial publicity are addressed to all attorneys. Those rules are not subject to any revisions.) Rule 5-110 narrowly addresses only the institution and maintenance of criminal charges, requiring that charges be supported by probable cause. The proposed rule recasts that requirement, and adds a host of additional obligations prosecutors must fulfill.

If adopted by the Supreme Court, the proposed rule will not only restate the prohibition against maintaining charges unsupported by probable cause, but obligate California prosecutors (state and federal) to do the following:

* Make reasonable efforts to assure that the accused has been advised of the right and have an opportunity to obtain counsel.

* Not seek to obtain from an unrepresented accused a waiver of important pretrial rights.

* Make timely disclosure to the defense of all evidence that tends to negate the guilt or mitigate the offense or sentence.

* Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless certain conditions exist.

* Seek to prevent persons under the prosecutor's supervision (police and investigators) from making extrajudicial statements that might prejudice a criminal proceeding (Rule 5-120).

* 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, and, if the conviction occurred in the prosecutor's jurisdiction, disclose that evidence to the defendant and undertake further investigation to determine whether the defendant was convicted of an offense that the defendant did not commit.

* Seek to remedy a conviction 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.

For the most part, the additional obligations that would be imposed by the proposed rule are not particularly controversial within the prosecution community, with one significant exception: The discovery obligation in subdivision (D). The discussion notes pertaining to (D) state that "the disclosure obligations are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83." Not discussed, but equally true, is that the discovery obligation is not tethered to the Criminal Discovery Act found in Penal Code Section 1054, et seq., including its definition of "exculpatory evidence" (Section 1054.1) and the timing requirements of that law, which require discovery be made at least 30 days prior to trial (Section 1054.7). As to that matter, the discussion note does state "[a] disclosure's timeliness will vary with the circumstances, and Rule 5-110 is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions."

The prosecution community is extremely concerned with the potential scope of the discovery obligation and the uncertainty the rule will introduce. For example, there are serious questions whether the provisions of (D) concerning all evidence that tends to negate the guilt or mitigate the offense or sentence is the same as the term "exculpatory evidence" as found in section 1054.1. The ABA's Ethics Committee issued an opinion in 2009 concerning ABA Rule 3.8(d), suggesting it is significantly broader in scope. See ABA Ethics Committee Formal Opinion 09-454. So, too, did the ABA opinion suggest that the obligation is "free standing"; that is, unrestrained by Brady, statute or court rule, and cannot be "waived" by a guilty plea, contrary to United States v. Ruiz, 536 U.S. 622 (2002). On the other hand, two state supreme courts - Wisconsin and Ohio - that have been called upon to construe the ABA rule have held that it imposes an obligation no greater than Brady and the state's criminal discovery provisions, as otherwise the rule would sew great confusion in the criminal justice process. See Office of Lawyer Regulation v. Sharon A. Riek, 2013 WI 81 (per curiam); Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio Sup. Ct. 2010).

There are discussions ongoing in the prosecution community that the discovery obligation of the proposed rule as construed by the ABA Ethics Committee is susceptible to challenge as being inconsistent with controlling statutes, that is, the Criminal Discovery Act, and would be preempted by that law. Additionally, there is an argument that it would violate the separation of powers in that it constitutes judicial rule-making imposing on the otherwise lawful conduct of the prosecutor's office.

Rule 3.8 Special Responsibilities of a Prosecutor

(Proposed rule adopted by the board Nov. 17, 2016)

The prosecutor in a criminal case shall:

(a) not institute or continue to prosecute 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 unless the tribunal* has approved the appearance of the accused in propria persona;

(d) make timely disclosure to the defense of all evidence or information known* to the prosecutor that the prosecutor knows* or reasonably should know* tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known* to the prosecutor that the prosecutor knows* or reasonably should know* mitigates the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(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:*

(1) The information sought is not protected from disclosure by any applicable privilege or work product protection;

(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) exercise reasonable* care to prevent persons* under the supervision or direction of the prosecutor, including 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.

(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.

Discussion

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.* This rule is intended to achieve those results. All lawyers in government service remain bound by rules 3.1 and 3.4.

[2] Paragraph (c) does not forbid the lawful questioning of an uncharged suspect who has knowingly* waived the right to counsel and the right to remain silent. Paragraph (c) also does not forbid prosecutors from seeking from an unrepresented accused a reasonable* waiver of time for initial appearance or preliminary hearing as a means of facilitating the accused's voluntary cooperation in an ongoing law enforcement investigation.

[3] The disclosure obligations in paragraph (d) include exculpatory and impeachment material relevant to guilt or punishment and are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] and its progeny. Although this rule does not incorporate the Brady standard of materiality, it is not intended to require cumulative disclosures of information or the disclosure of information that is protected from disclosure by federal or California laws and rules, as interpreted by cases law or court orders. A disclosure's timeliness will vary with the circumstances, and this rule is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.

[4 The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal* if disclosure of information to the defense could result in substantial* harm to an individual or to the public interest.

[5] Paragraph (f) supplements rule 3.6, which prohibits extrajudicial statements that have a substantial* likelihood of prejudicing an adjudicatory proceeding. Paragraph (f) is not intended to restrict the statements which a prosecutor may make which comply with rule 3.6(b) or 3.6(c).

[6] Prosecutors have a duty to supervise the work of subordinate lawyers and nonlawyer employees or agents. (See rules 5.1 and 5.3.) Ordinarily, the reasonable* care standard of paragraph (f) will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.

[7] When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a person* outside the prosecutor's jurisdiction was convicted of a crime that the person* did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor's jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable* efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court authorized delay, to the defendant. Disclosure to a represented defendant must be made through the defendant's counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. (See rule 4.2.)

[8] Under paragraph (h), once the prosecutor knows* of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Depending upon the circumstances, steps to remedy the conviction could 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.

[9] A prosecutor's independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of paragraphs (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this rule.