Prosecutor Flashcards
What are the duties of a prosecutor as it pertains to criminal defendants’ constitutional rights?
Prosecutors have the duty to protect defendants’ constitutional rights. They must:
1. advise unrepresented defendants of their right to counsel
2. not seek to get unrepresented defendant to waive their pretrial rights (this does not apply to approved pro se defendants)
3. disclose any exculpatory or mitigating evidence, even after a conviction
4. remedy a conviction in their own jurisdiction when learnign of clear and convincing exculpatory evidence.
Duties re probable cause
A prosecutor shall not prosecute a case if they do not believe, in good faith, that there is probable cause.
Duties re investigation
A prosecutor must conduct a fair investigation where they objectively investigate leads.
Duties re integrity & professionalism
A prosecutor must:
1. avoid conflicts with private interests
2. not subpoena lawyers
3. avoid making public statements about cases
What are a prosecutors’ special duties to defendants post-conviction, when the conviction was not secured in their jurisdiction?
They must inform the proper authority of evidence that is new, credible, and creates a reasonable liklihood that a defendant did not committ their offense of conviction.
What are a prosecutors’ special duties to defendants post-conviction, when the conviction was secured in their jurisdiction?
They must inform the proper authority of evidence that is new, credible, and creates a reasonable liklihood that the defendant did not commit their offense of conviction.
They must also:
1. promptly disclose the new evidence to teh defendant (unless ordered otherwise by the court); and
2. further investigate to determine whether the defendant is actually guilty.
3. If the evidence is clear and convincing, the prosecutor must also seek to remedy the conviction.
Duties re public statements
A prosecutor should avoid making public statements about pending cases.
Does a prosecutor have a duty to disclose exculpatory evidence beyond Brady? I.e. exculpatory evidence that is not material?
Yes. The model rules require that prosecutors disclose all exculpatory evidence even when it is not material.
Does a prosecutor have a duty to disclose mitigating evidence at sentencing?
Yes, the prosecutor must disclose all mitigating evidence that they know of unless that information is privileged or under a protective order.
Do prosecutors have a duty to search for mitigating evidence?
No.
