Point & Glick

Advo­cate
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;

© 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 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;

(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.

http://​www​.abanet​.org/​c​p​r​/​m​r​p​c​/​r​u​l​e​_​3​_​8​.​h​tml

Rule 3.8 of the ABA model rules is impor­tant for two rea­sons. The first rea­son is that a pros­e­cu­tor, as a rep­re­sen­ta­tive of the gov­ern­ment, con­trols an extra­or­di­nary amount of power that must be tem­pered with… yes, respon­si­bil­ity. Read more »