#16487 - Criminal Prosecution - Professional Responsibility

05. Special Issues in Criminal Prosecution

P.386-401

Issues Concerning Prosecutors

• P have broad powers that are usually beyond review: whom to investigate, crimes to charge, whether to offer a plea bargain and whom to offer.

• P has resources far greater than mot Ds

1. Constitutional and Ethical Disclosure Obligations

• ABA Rule 3.8(d) P in a criminal case shall

  • 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 P is relieved of this responsibility by a protective order of the tribunal

[Implemented Brady, but not post-conviction, requires actual knowledge, no duty to enquire]

• Brady v Maryland P’s broad duty of disclosure:

  • P must disclose material evidence even without request by D, material if there is a reasonable probability that, had the evidence been disclosed to D, the result of the proceeding would have been different

  • This includes both inculpatory and exculpatory evidence

  • Reasonable probability: only the likelihood of a different result is great enough to undermine confidence in the outcome of the trial – whether D asked

  • Brady violation:

    • 1) evidence at issue must be favorable to the accused (exculpatory or impeaching);

    • 2) evidence must have been suppressed by the State, either willfully/ inadvertently;

    • 3) prejudice must have ensured

  • Evaluation of a Brady claim is usually addressed after conviction, as

    • D may not know P withheld until then; and

    • whether there is a reasonable probability of a different outcome is retrospective

  • Brady inquiry occurs after conviction retrospective

  • But difficult to impose as it is highly unlikely wrongdoing will ever come to light in the first place

  • Professional discipline is rare, and violations seldom give rise to liability for money damages

    • A person whose conviction is overturned because P has violated Brady may sue P

    • but it’s the city /county that will be able to pay significant damages, who are not vicariously liable for misconduct of Ps claimant would need to prove P’s conduct was the policy of the city/ county

  • Smith v Cain the undisclosed evidence consisted of contradictory statements of the only eyewitness. But state’s lawyer maintained that although it would have been prudent to disclose such witness statement, Brady did not require them to do so. Held: the undisclosed statement directly contradicted witnesses’ testimony it was plainly material

• Brady v. Rule 3.8(d) (page 391)

  • Brady: inquiry occurs after conviction; P may think it would not be discovered; or won’t change the outcome fo the case anyway, and no personal consequence on P

  • Rule 3.8(d)

    • requires timely disclosure of certain info so D can make use of it during trial

    • no prejudice component, only a turnover duty

    • P doesn’t know D’s case – not in position to say whether and how info will help D or whether a failure to provide it will prejudice the defense

    • Text is explicitly broader than Brady – incentive and Brady is against disclosure

  • In Re Riek, court opined that rule was not broader than 3.8 and offered policy concern:

    • conflicting standard of disclosure cause uncertainty as to how P should proceed

    • P may face professional discipline for failing to disclose evidence, even if constitutional law doesn’t require disclosure P may disclose evidence to avoid disciplinary sanctions effectively expand scope of discovery required of Ps in criminal cases

    • Broader interpretation invites use of ethics rule as tactical weapon in litigation P should not be subject to disciplinary proceedings for complying with legal disclosure obligations should be consistent with Rule 3.8

  • In re Kline

    • Retrospective analysis (Brady) is inapplicable in pretrial prospective determinations

    • Whether info was exculpatory and/or undermined the fairness of the criminal trial are close judgment calls can undermine public trust and confidence in the court as they are not being made by jury but by court

  • Kyles v Whitely

    • Supreme Court: Brady requires less of P than Rule 3.8(d) but not binding on State Courts

  • Compare the Brady requirements, which derive from the Due Process Clause and apply in all criminal prosecutions, and Rule 3.8(d), which some but not all states have adopted. If we have Brady, why do we need the rule? What “work” does the rule do that Brady does not? What is the policy justification for interpreting the rule as imposing obligation on prosecutors greater than those imposed by Brady?

2. Ethical Issues in Making the Charging Decision

• Ps are representative of the client + lawyer for the client she make the decisions that client make

• Rule 3.8(a) requires P to “refrain from prosecuting a charge that P knows is not supported by probable cause” but not much of a rule, very wide discretion to P:

  • 1) P cannot prosecute a person who is legally innocent

  • 2) P would not waste resources prosecuting someone likely to be acquitted

  • 3) Rule only applies when P knows the charges...