Duties of Prosecutors; Zeal - July 18 Flashcards
Do the MRPC impose special ethical duties on prosecutors regarding charging decisions, evidentiary decisions, and the treatment of criminal defendants? (Q)
Yes. The MRPC impose special duties on prosecutors regarding charging decisions, evidentiary decisions, and the treatment of criminal defendants. Specifically, a prosecutor must:
refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
make reasonable efforts to ensure that an accused has been advised of the right to and procedures for obtaining counsel and has been given a reasonable opportunity to obtain counsel;
not seek a waiver of important pretrial rights from an unrepresented person, except one who is appearing pro se with the court’s approval;
disclose exculpatory evidence before trial and mitigating evidence before sentencing; and
not subpoena a lawyer to present evidence about a current or former client unless the prosecutor reasonably believes the information is unprivileged, essential to the prosecution, and otherwise unobtainable.
Do the MRPC impose special ethical duties on prosecutors regarding possible wrongful convictions? (Q)
Yes. The MRPC impose special duties on prosecutors regarding possible wrongful convictions. Specifically, if a prosecutor knows of new, credible, and material evidence that creates a reasonable likelihood that a defendant was convicted of a crime that he did not commit, the prosecutor must:
promptly disclose that evidence to the appropriate authority and
if the conviction was obtained in the prosecutor’s own jurisdiction, promptly disclose the evidence to the defendant and start an investigation into whether the defendant was wrongfully convicted.
If a prosecutor knows of clear and convincing evidence that establishes the actual wrongful conviction of someone in the prosecutor’s own jurisdiction, the prosecutor must seek to remedy the conviction. The procedures for remediation will vary from one jurisdiction to another and are not prescribed by the MRPC.
A prosecutor successfully prosecuted a defendant for robbing a convenience store. Subsequently, the prosecutor received security footage from a store across the street showing that the robbery was committed by the defendant’s cousin. The prosecutor did not tell anyone about the video and stored the videotape with the other files for the case.
Has the prosecutor engaged in misconduct? (Q)
Yes. The prosecutor has engaged in misconduct. If a prosecutor learns of new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the crime, the prosecutor must:
promptly disclose that evidence to an appropriate court or authority (e.g., the jurisdiction’s chief prosecutor) and
if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose the evidence to the defendant and investigate whether the defendant was convicted of an offense that he did not commit.
Here, the video footage was new, credible, and material evidence that created a reasonable likelihood that the defendant did not commit the robbery, because the video showed someone else committing the crime. The prosecutor was therefore required to disclose the video instead of storing it away. Thus, the prosecutor has engaged in misconduct.
May a lawyer seek to influence a judge, juror, prospective juror, or other official by unlawful means? (Q)
No. A lawyer may not seek to influence a judge, juror, prospective juror, or other official by unlawful means. Any desired influence should instead be brought to bear through the practice of lawful, ethical, and zealous advocacy.
A lawyer’s client was being deposed by opposing counsel. The lawyer was concerned that opposing counsel was going to elicit truthful but damaging information from the client. In an effort to distract the opposing counsel from her line of questioning, the lawyer began objecting to opposing counsel’s questions without having a legal basis to do so.
Did the lawyer’s unfounded objections constitute professional misconduct? (Q)
Yes. The lawyer’s unfounded objections constituted professional misconduct. A lawyer is prohibited from engaging in conduct intended to disrupt a tribunal. This rule applies to any collateral proceeding connected to a tribunal, including a deposition.
Here, the lawyer was not objecting to opposing counsel’s questions at the deposition to uphold the client’s legal rights or because opposing counsel’s questions were improper. Instead, the lawyer was making baseless objections in an effort to disrupt the deposition by distracting opposing counsel and keeping her from asking proper questions that could reveal damaging information. This was nothing more than an attempt to disrupt a tribunal, which is prohibited. Thus, the lawyer’s unfounded objections constituted professional misconduct.
If a lawyer believes a judge is abusing his authority, may the lawyer reciprocate in an effort to zealously represent her client? (Q)
No. If a lawyer believes a judge is being abusive, the lawyer may not reciprocate in an effort to zealously represent her client. The misconduct of a judge does not excuse or justify abusive conduct by the lawyer. A lawyer fulfills her duties as an advocate by presenting the case and protecting the record for subsequent review; belligerent or theatrical behavior is unnecessary. The lawyer must preserve professional integrity at all times and should remember that the function of an advocate is to present evidence and arguments so that the case may be decided according to the law.
Under what circumstances is a lawyer prohibited from communicating with a juror or prospective juror after the jury has been discharged? (Q)
A lawyer is prohibited from communicating with a juror or prospective juror after discharge of the jury if:
the communication is prohibited by law or court order;
the juror has informed the lawyer that the juror does not desire to communicate; or
the communication involves misrepresentation, coercion, duress, or harassment.
Otherwise, a lawyer may communicate with a juror or prospective juror after the jury is discharged. Lawyers sometimes find these communications useful in understanding the case or the verdict.
In general, is a lawyer permitted to engage in ex parte communications with a judge, juror, prospective juror, or other official during a proceeding before a tribunal? (Q)
No. In general, a lawyer is prohibited from engaging in ex parte communications (i.e., oral or written communications that occur without notice to or the presence of all interested parties) with a judge, juror, prospective juror, or other official during a proceeding before a tribunal. This rule is intended to prevent improper influence, or even the appearance of improper influence, by the lawyer.
However, ex parte communications are permitted if authorized by law or court order (e.g., many jurisdictions allow a lawyer to seek a temporary restraining order or other emergency relief ex parte).
A lawyer arrived at the courthouse for the third day of his client’s trial and saw one of the jurors from the trial in line at a coffee cart. The lawyer joined the line and began chatting with the juror about how nice the lawyer’s client was.
Has the lawyer committed professional misconduct? (Q)
Yes. The lawyer has committed professional misconduct. In general, a lawyer is prohibited from engaging in ex parte communications (i.e., oral or written communications that occur without reasonable notice to or the presence of all interested parties) with a juror during a proceeding before a tribunal, unless authorized by law or court order. This rule is intended to prevent improper influence, or even the appearance of improper influence, by the lawyer.
Here, chatting with the juror in the coffee line gave the lawyer the opportunity to advocate for his client without the opposing party being able to object or the conversation being recorded. This was an inappropriate ex parte communication between the lawyer and the juror. Thus, the lawyer has committed professional misconduct.
What is an extrajudicial statement? (Q)
An extrajudicial statement is a statement about any aspect of a legal matter that is made outside the context of formal judicial proceedings, such as a statement made by a lawyer to a member of the press.
Under what circumstances is a lawyer prohibited from making extrajudicial statements regarding the investigation or litigation of a matter in which the lawyer is participating or has participated? (Q)
A lawyer is prohibited from making extrajudicial statements about the investigation or litigation of a matter in which the lawyer is participating or has participated if the lawyer knows or reasonably should know that the statement will:
be communicated to the public and
have a substantial likelihood of materially prejudicing an adjudicative proceeding.
These prohibitions also apply to any lawyer in the same firm or government agency as the restricted lawyer.
What topics do the MRPC specify as being especially likely to prejudice a proceeding when made the subject of extrajudicial statements? (Q)
The MRPC specify that the following topics are especially likely to prejudice a proceeding when addressed in extrajudicial statements:
the character, credibility, reputation, or criminal record of a party, suspect, or witness;
a witness’s identity;
a witness’s expected testimony;
the possibility of a guilty plea or the contents of a confession;
the results of a test or the refusal to submit to a test;
the identity or nature of expected physical evidence;
an opinion as to a defendant’s guilt or innocence;
information that the lawyer knows or should know will be inadmissible as evidence; and
the fact that a defendant has been charged with a crime, without an explanation that a charge is merely an accusation.
What kinds of extrajudicial statements do the MRPC expressly allow a lawyer to make if the lawyer is participating or has participated in the adjudication or investigation of a matter? (Q)
The MRPC expressly allow a lawyer who is participating or has participated in the adjudication or investigation of a matter to make the following types of extrajudicial statements:
the claim, offense, or defense involved in the investigation or matter and, except as prohibited by law, the identity of the persons involved;
that an investigation of the matter is in progress;
the scheduling or result of any step in the litigation;
a request for assistance in obtaining evidence and information necessary for that request; and
a warning about the danger presented by a person involved, if there is reason to believe that there is a likelihood of substantial harm to an individual or to the public interest.
The MRPC specify that this is not intended as an exhaustive list of permissible extrajudicial statements.
What types of extrajudicial statements do the MRPC expressly allow a lawyer to make in a criminal case, in addition to those allowed in other matters? (Q)
The MRPC expressly allow a lawyer who is participating or has participated in a criminal case to make the following types of extrajudicial statements, in addition to those allowed in other matters:
an accused person’s identity, residence, occupation, and family status;
information necessary to aid in apprehension of the accused if the accused has not yet been apprehended;
the fact, time, and place of arrest; and
the identity of the investigating and arresting officers or agencies and the length of the investigation.
Do the MRPC impose special ethical duties on prosecutors regarding extrajudicial statements? (Q)
Yes. The MRPC impose special duties on prosecutors regarding extrajudicial statements. Specifically, a prosecutor must:
refrain from extrajudicial comments that are likely to heighten public condemnation of the accused, unless those comments serve a legitimate public-information or law-enforcement purpose and
take reasonable care to prevent law-enforcement and other personnel assisting or associated with the prosecutor from making extrajudicial statements that would be prohibited to the prosecutor.
These limitations apply in addition to the limitations on extrajudicial statements in criminal cases imposed elsewhere in the MRPC.
