7.B Duties to the Court (& of Prosecutors) Flashcards
What additional duties do prosecutors owe? State the overarching duty and briefly list the other four.
Prosecutors must balance their duty to convict defendants with a duty to pursue justice.
They hold additional duties regarding (1) probable cause, (2) right to counsel, (3) extrajudicial comments and (4) disclosure of evidence.
Describe a prosecutor’s duties around extrajudicial comments?
Within their duties to the court - duty to uphold impartiality of the tribunal - lawyers have general duties surrounding trial publicity.
Prosecutors must also (1) refrain from extrajudicial comments that are likely to heighten condemnation of the accused and (2) exercise reasonable care to prevent investigators, law enforcement or other people associates with the prosecutor from making such statements.
Exception: if necessary to inform the public of the nature/extent of prosecutor’s actions serving a legitimate law enforcement purpose.
Describe a prosecutor’s duties around evidence?
Prosecutors have a duty:
(1) not to prosecute cases not supported by probable cause; and
(2) to timely disclose all evidence that tends to negate guilt or mitigate the offense. This extends post-conviction: new evidence that creates a reasonable likelihood of innocence must be disclosed to the court & defendant, then they must investigate any wrongful conviction.
Describe a prosecutor’s duty regarding right to counsel?
Prosecutors must make reasonable efforts to assure the defendant’s rights, including the right to counsel.
What are a lawyers duties to the court?
Lawyers generally are bound by duties of candor, fairness and impartiality to the court itself.
What is the duty of impartiality? Briefly list the two key prohibitions.
The duty of impartiality of tribunal requires a lawyer to avoid improper attempts to influence the outcome of a trial.
It prohibits (1) contacting court personnel and (2) certain trial publicity.
impartiality: describe the rules regarding trial publicity? What are the five forms of prohibited statements?
Lawyers must avoid trial publicity that might influence the proceeding or bias public opinion.
They may not make out-of-court statements they know or reasonably should know
+ will be disseminated in the media and
+ will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Prohibited statements include re:
(1) character, creditability, reputation, or criminal record;
(2) possibility of guilty pleas;
(3) opinion of guilt or innocence;
(4) results of tests; and
(5) evidence that’s likely inadmissible.
Impartiality: who must prosecutors avoid contacting?
Ex parte communication: lawyers must not (1) communicate with a judge without the other lawyer present or (2) speak with jurors or court personnel outside of court process.
Gifts to judges/court personnel also prohibited.
What is the duty of fairness? What are the five particular prohibitions?
Lawyers have a duty to protect evidence and preserve the integrity of the legal process.
Must not:
(1) obstruct access to evidence;
(2) suppress/refuse to provide evidence they are obligated to produce;
(3) pay witnesses to induce testimony;
(4) knowingly disobey a court order; or
(5) testify/opine at trial - i.e., assert personal knowledge of facts at issue, state personal opinion about guilt/innocence
What is the duty of candor? How does a lawyer themselves comply - there are three key requirements and one extra in California…
Lawyers must insure truthful statements to the court. They themselves (1) cannot make any known false statement of fact or law, (2) must correct such statements, (3) must disclose controlling legal authority directly adverse to their position.
CA: may not knowingly misquote legal authority.
Duties re: client perjury?
Reasonable remedial remedies
- knows they intend to - persuade them not to (CA: if doesn’t work, let them testify in narrative fashion/no questions and don’t rely on it in closing)
- knows they have - withdraw false statement?
- withdraw, by seeking court permission
- report to tribunal (not in CA) as necessary to remedy
