Week 7

Question 1

Can a prosecutor prosecute a charge that they know is not supported by probable cause?

Answer 1

No. They are obligated to refrain.

MRPC 3.8

Question 2

Does a prosecutor have any duties relating to informing the accused they have a right to counsel?

Answer 2

Yes, they must 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;
(MRPC 3.8)

Question 3

Can a prosecutor seek a waiver of important pretrial rights from an unrepresented defendant?

Answer 3

No

MRPC 3.8

Question 4

Is a prosecutor obligated to disclose to the defense information that tends to negate the guilt of the accused or mitigates the offense?

Answer 4

Yes. They have to provide all unprivileged mitigating information as well.
(MRPC 3.8)

Question 5

When can a prosecutor subpoena a lawyer about evidence about a past or present client?

Answer 5

1. If the information isn’t privileged
2. The evidence sought is essential to an ongoing investigation; AND
3. there is no other feasible alternative to obtain the information

Question 6

What should a prosecutor do if they find new evidence that casts a reasonable doubt regarding whether an already convicted defendant did not actually commit the crime? [2 things]

Answer 6

1. promptly disclose this to the property authority, and
2. If it’s in their jurisdiction
   - tell the defendant
   - launch an investigation to determine if they did not commit the offense

Question 7

What is the evidentiary standard for the new evidence when opening a new investigation into a convicted defendant?

Answer 7

1. New,
2. Credible, and
3. Material

Question 8

What should the prosecutor do if they receive clear and convincing evidence that a convicted defendant did not commit the crime they were charged with?

Answer 8

Immediately seek to remedy the conviction.

Question 9

What is the holding under Brady v. Maryland?

Answer 9

Due process requires the prosecution turn over evidence that is favorable to the defense upon request if the evidence relates to the defendant’s guilt or innocence or to sentencing.

Question 10

What is the holding of Giglio v. United States?

Answer 10

Evidence that could impeach the prosecution’s witness is Brady material (i.e., material, exculpatory evidence that MUST be turned over to the defense)

an affirmative duty!

Question 11

What is the holding of Kyles v Whitley?

Answer 11

If the prosecutor withholds several pieces of Brady material, the defendant is entitled to a new trial.

Question 12

What is the standard under Kyles v Whitley?

Answer 12

The evidence does not need to be exculpatory; it just needs to be material

material = reasonable probability that a different outcome would have resulted if the evidence was turned over)

Question 13

Under Connick, what is the standard held to district attorney’s office to determine if they are liable for failure to train?

Answer 13

Under Connick, a district attorney’s office must be deliberately indifferent to a need for more or different training

Question 14

Under Connick, what does it mean to be “deliberately indifferent” to a need for more training?

Answer 14

The office must have noticed that its inadequate training causes its’ attorneys to violate individuals’ constitutional rights.

High standard, and since its’ a civil case, plaintiff has full burden to prove.

Question 15

is a prosecutor absolved of a Brady violation if it failed to turn over favorable evidence, but acted in good faith?

Answer 15

No, good faith is irrelevant to Brady violations.

Question 16

when would Giglio and Brady require a new trial?

Answer 16

only in cases where the evidence suppressed was material and likely to affect the outcome of the case

Question 17

Does a prosecutor have a duty to find and assess any favorable evidence known to others acting on the gov’t’s behalf?

Answer 17

Yes! must seek it out, includes police officers

Question 18

can a DA’s office be liable under §1983 for a single incident?

Answer 18

No, not after Connick.

single incidents only work if the violation was a highly predictable consequence of the office’s training policy. If Connick wasn’t enough, it never will be

Question 19

what amount of violations would be sufficient for a DA’s office to be liable under Connick?

Answer 19

the plaintiff must demonstrate a PATTERN of constitutional violations due to inadequate training

Question 20

does admissibility factor into a prosecutor’s disclosure analysis?

Answer 20

No! Prosecutor must turn it over even if he thinks it won’t be admissible

Question 21

what things does “exculpatory” encompass?

Answer 21

punishment (e.g., mitigating information)

claims, defenses, elements

witness impeachment

Bias!

Question 22

What does the Jenks Act require prosecutors to disclose? When?

Answer 22

prosecutor is required to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant)

but only AFTER the witness has testified!

Question 23

when should the prosecutor generally disclose information?

Answer 23

DOJ policy suggests it should be disclosed before grand jury proceedings

• even though Brady and Giglio don’t require that