Special Duties of a Prosecutor

Question 1

Rule 3.8(a): special duties of a Prosecutor

Answer 1

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

Question 2

Rule 3.8(b): special duties of a Prosecutor

Answer 2

The prosecutor in a criminal case shall:

(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;

Question 3

Rule 3.8(c): special duties of a Prosecutor

Answer 3

The prosecutor in a criminal case shall:

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing

Question 4

Rule 3.8(d): special duties of a Prosecutor

Answer 4

The prosecutor in a criminal case shall:

(d) 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 the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Question 5

Rule 3.8(e): special duties of a Prosecutor

Answer 5

The prosecutor in a criminal case shall:

(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;

Question 6

Rule 3.8(f): special duties of a Prosecutor

Answer 6

The prosecutor in a criminal case shall:

(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 Rule 3.6 or this Rule.

Question 7

Rule 3.8(g): special duties of a Prosecutor

Answer 7

The prosecutor in a criminal case shall:

(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,
o (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
o (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.

Question 8

Rule 3.8(h): special duties of a Prosecutor

Answer 8

The prosecutor in a criminal case shall:

(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