Duties to Crim Defendants and 3ps Flashcards
first 6 points for special duties of prosecutors
o 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;
o (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
does not apply to an accused appearing pro se with the approval of the tribunal
does not forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence
o (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;
o (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;
o (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 R3.6 or this Rule
distinguish between duties of prosecutor g and h
o (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
o (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
necessary steps may include:
• disclosure of the evidence to defendant
• requesting that the court appoint counsel for an unrepresented indigent defendant
• where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offence
o Notes on sections (g) and (h)
a prosecutor’s indep judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this rule
these sections serve similar purposes
• (g) is easier to satisfy – (1) applies outside your juri (so less of a burden on you), and (2) applies within your juri (so the added burden of (ii))
• **see but if it is in your juri and you have C&C evidence, look to (h)
6 points for lawyer’s duty to 3ps
o a lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value;
• **a lawyer shall not counsel or assist another person to do any such act
• “unlawful concealment”: where the lawyer has some legal obligation to disclose that is independent of the ethical rule
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial:
• allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,
• assert personal knowledge of facts in issue except when testifying as a witness, or
• state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
• (1) the person is a relative or an employee or other agent of a client; and
• (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information
duty of truthfulness to others
o rule: in the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by R1.6
o **generally no affirmative duty to inform opposing pty of relevant facts
