Week 1 Flashcards
Prosecutors have a duty to ensure _________ justice
procedural, substantive, both
Both! can’t argue that the ends justified the means
what is the main duty of a prosecutor?
Winning cases or ensuring justice is done?
ensuring that justice is done (Berger)
are ethical obligations more/less expansive than legal obligations?
More expansive
e.g., 3.8(d) - prosecutor’s duty to disclose exculpatory evidence broader than Brady
may a prosecutor prosecute a charge that he knows is not supported by probable cause?
No
Prosecutors shall make _________ 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
reasonable
should a prosecutor seek to obtain a waiver of important pretrial rights from an unrepresented person?
NO
Prosecutors are to make timely disclosures to the defense of all evidence/information known to the prosecutor that tends to ______ the guilt or _______ the offense
negate; mitigate
re: sentencing, what must the prosecutor disclose to the defense and tribunal?
all unprivileged mitigating information known to the prosecutor (unless protective order says otherwise)
Generally, should a prosecutor subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client?
if no, is there an exception?
NO, unless the exception applies (3 elements)
when can a prosecutor subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client?
3 elements (the 3 N’s)
1) info sought isn’t protected by any privilege
- not protected
2) evidence is essential
- need it
3) no other feasible alternative to get the info
What should a prosecutor do when he learns of new, credible and material evidence creating A REASONABLE LIKELIHOOD that a convicted defendant did not commit an offense?
(1-2 things)
1) promptly disclose to the appropriate court
2) IF in the prosecutor’s jurisdiction…
- promptly disclose to the defendant
- -re-investigate the conviction again, see if innocent
What should a prosecutor do when he learns of CLEAR AND CONVINCING evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit?
immediately remedy that conviction!
What is the ONE rule of professional conduct that specifically relates to prosecutors?
MRPC 3.8
What’s the holding in Jenks? re: Witness reports
federal prosecutors must disclose to defendants any written witness reports
AFTER the witness has testified
prosecutor has an affirmative duty and a negative duty… what are those?
affirmative - promote factually accurate verdicts
negative - don’t use improper methods to get a conviction
