Professional Responsibility And Prosecutorial Ethics Outline

Prosecutorial Ethics: Fall 2013 Prosecutor is a Minister of Justice, trying to make an informed decision. WHO IS THE CLIENT: Public Interest; Society. If it's a victimless crime, Society is the victim, the public is the client. Prosecutor has incredible power to ruin reputations of Defendant or the Government. Represents the Government, and the PROCESS. * * * Bases of Applicable Limitations on Prosecutors: ABA Rules of Professional Conduct...3.6 3.8: Special Rule for Prosecutors 4.2: Communication with witnesses Constitutional: State & Federal Statutes: State & Federal Note: Although only ABA's Model Rules of Professional Conduct are binding (and our focus is 3.6 and 3.8) and our three additional sources of ethical guidance for prosecutors are not (ABA Criminal Justice Standards, US Attorney's Manual and NDAA Standards), the violation of these three may be grounds for bar discipline (particularly the ABA Criminal Justice Standards), or referral of federal prosecutor to the Office of Professional Responsibility within the DOJ for investigation, employment-related discipline, and possibly discharge (particularly US Attorney's Manual). * o o * * * CHARGING DECISION: Prosecutors have discretion: Virtually unreviewable (cts don't like 2nd-guessing); limited resources Charging is most important function: reputation ruined; time, money, defend self. Charging Threshold: Probable cause. Hayes, and Constitutional directive. Even if it's not a slam dunk case, it's okay to charge for a higher crime if you have probable cause. Rule 3.8(a): Prosecutor shall "refrain from prosecuting a charge that he knows is not supported by probable cause." SS? Probable Cause: (a minimum threshold) More likely than not the crime was committed---Totality of the circumstances inquiry; not mathematical or formulaic. Less than beyond-a-reasonable-doubt standard. Hearsay may be considered. Considering ONLY the government's case (not the defense), and assumes the gov't witnesses are credible * o * * o * * * * Charging factors to consider (Not binding): Nature & Seriousness of the offense SS? Community: Dangerousness; Economic harm, Peace of mind [Trayvon Martin] SS? Victim: Age or health (Trayvon Martin) SS? Public Attitude: history of non-enforcement; technical violations. o 1 o o o o o o o Deterrent effect of prosecution. deterrence is important objective of crim law; minor punishment might help! Person's culpability SS? Not the same as evidence of guilt: What was his role in the crime? Person's criminal history: Nature of prior criminal involvement, how long ago? willingness to cooperate in investigation of others Defendant's circumstances SS? Position of trust (principal, church leader, police officer, corp director) Much more likely to prosecute SS? Is D, older? Have mental or psychological impairments? Probable sentence (is D already serving another sentence?) Likelihood of conviction (strength of the evidence): Better evidence-more likely to charge (really looking for more than probable cause) SS? Fed prosecutors: Only charges which can reasonably be expected to be proven beyond a reasonable doubt by legally sufficient evidence at trial (USAM 9-27.300) SS? ABA 3-3.9(a)(not binding): "sufficient admissible evidence to support a conviction" (lower std than USAM) SS? Prosecutor's personal doubts about factual guilt: Should not be compelled to proceed with prosecution So if there's a hypo that P just thinks D is not guilty, then should not bring case (ex. Guy stole $ but no one hurt cuz they knew about it). * * Improper to be consider: Persons' background: Race, Sex, Gender, Nat'l Origin, political beliefs, sexual orientation SS? But if by pursuing these charges you think you can have a deterrent impact, you might be willing to consider it. (e.g., Deter illegal immigrants by punishing a crime that illegal immigrants commit) - can't just punish a person because others of the same race commit other crimes. Prosecutor's personal feelings towards: The person, the person's associates, or the victim, or his professional circumstances (what he can gain in his career) o o * OVERCHARGING: shouldn't overcharge for leverage in pleading (not per se unethical, depends on the facts) Adding charges the prosecutor cannot prove in order to get a plea ABA Standard 3-3.9(f): Prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offence. (Not binding) If Victim is unwilling to testify, Should you Prosecute? Reasons For: SS? Take a bad guy off the street SS? Embolden the Victim (Maybe she'll testify) SS? Even if you can't win, Prosecution itself is a big punishment (reputation, time, fear etc.) Reasons Against: SS? Emboldens future perpetrators if you don't win SS? Finite resources; you can't prosecute everyone so focus on those you can win SS? More danger for Victim (V probably has reasons not to testify, such as future threat) o * * o o 2 * * ADA doesn't have to accept Police's recommendation for charging less/more aggressively. That D cooperates may be considered at sentencing, doesn't have to be considered at charging. REMEMBER: Prosecutor is a Minister of Justice. WWMJD? GRAND JURY: The Sword & Shield. (16-23 people, need 12 to vote) * In federal practice and most states grand jury is composed of 23 lay citizens (Leipold, Andrew). After being impaneled by district's presiding judge and instructed on their general responsibilities, grand jury acts UNDER GUIDANCE AND SUPERVISION OF THE PROSECUTOR. o Prosecutor is responsible for issuing subpoenas in jury's behalf to compel attendance of witnesses, making an opening statement to the grand jury describing the case they are about to hear, examining witnesses, drafting proposed indictments for grand jury's consideration, and instructing grand jury on legal elements of pertinent crimes. Prosecutor examines witnesses, introduces physical evidence, prepares draft indictment, & instructs GJ on legal elements of the crime (Peter Henning). * GJ's work happens in secret: No Defense Counsel or Judge physically present to play a role in grand jury inquiry, WHICH MAKES PROSECUTOR'S ROLE ALL THE MORE IMPORTANT AND HIS MISCONDUCT ALL THE MORE EGREGIOUS. * Even in jurisdictions where attorney may be present in grand jury room during client's testimony should client be called as a witness, counsel may NOT object to prosecutor's questions or speak on the record during grand jury proceedings. United States v. Fritz and U.S. v Scully (page 23): Defense counsel is not allowed to cross examine government's witnesses before grand jury, to call witnesses on his own behalf, or to make closing argument summarizing evidence and urging grand jury not to indict his client. Grand Jury issues indictment if majority of its members find probable cause to believe that D has committed crime in question (Costello v. US) US v. Calandra: Rules of evidence DO NOT apply to GJ proceedings except those pertaining to testimonial privileges. Costello v. US: Hearsay evidence is admissible before GJ, as is evidence pursuant to unconstitutional search and seizure. (Calandra and US Attorney's Manual 9-11.231) GJ subpoenas do not involve "seizures" for constitutional purposes, so they may not be challenged on grounds that they are baseless, or unsupported by reasonable suspicion of criminal activity (US v. Dionisio) THE POWER OF PROSECUTOR BEFORE GRAND JURY IS LARGELY UNCHECKED, UNLIKE IN A CRIMINAL TRIAL WHERE JUDGE'S PRESENCE & ABILITY OF DEFENDANT TO INTERPOSE TIMELY OBJECTIONS ACT AS COUNTERWEIGHTS. (page 24). Grave possibility exists for prosecutor to manipulate his power without likely detection (it's a problem called informational asymmetry b/w GJ and prosecutor). 3 Prosecutors, as officers of the Court with an obligation to seek justice, must avoid prejudicial behavior before GJ. Although professional conduct rules in most states are largely silent on prosecutor's ethical responsibilities before GJ, he or she must be guided by two overarching principles: (1) Prosecutor must AT ALL TIMES SEEK TO PRESERVE INDEPENDENCE OF GJ AS DELIBERATIVE BODY. (2) Prosecutor must TAKE ADEQUATE STEPS TO PRESERVE SECRECY OF GJ PROCEEDINGS. o USAM 9-11.010: Must always conduct himself as an officer of the court o Must do nothing to inflame or otherwise improperly influence the Grand Jurors o ABA std 3-3.5(a): Should give due deference to GJ's status as an independent legal body I. ABUSE OF HEARSAY EVIDENCE (24-26) o Indictment may be based solely on hearsay. HEARSAY IS ADMISSIBLE BEFORE GJ. (US v. Costello) o MUST disclose to GJ that testimony is hearsay to avoid misleading the GJ (also give opportunity to GJ to hear from eyewitnesses) USAM 9-11/232; ABA std 3-3.6(a) o Pg. 25: It is improper for prosecutor to present hearsay testimony to the GJ in the guise of direct evidence, where the effect of the presentation is to mislead the GJ about the nature or source of the evidence that they are hearing! SS? US v. Estepa and US v. Wander: 2nd and 3rd Federal Circuit Courts have both ruled that independence of GJ is COMPROMISED where prosecutor uses hearsay evidence (1) where non-hearsay is readily available, (2) where jury is misled into believing it was hearing direct testimony and not hearsay, and (3) where there is high probability that had GJ heard testimony from the eye witness it would not have indicted. (25) SS? Violation of ABA Criminal Justice Standards 3-3.6(f) and USAM 9-11/232, which admonish a prosecutor who INTENTIONALLY INTERFERES with independence of GJ. II. FIFTH AMENDMENT RIGHTS: ABA Criminal Justice Standards 3-3.6(e) and USAM 9-11.254 (potentially): If prosecutor knows in advance that witness will plead the Fifth (right to remain silent), he may not put him before GJ because "such a tactic is unfair in that the very exercise of the privilege may prejudice the witness in the eyes of the GJ." Constitutional Distinction: Miranda v. Arizona notification of the privilege against self-incrimination is NOT PRESENT in GJ context because witness is NOT IN PHYSICAL CUSTODY (US v Washington). This is true even if witness is target witness and prosecutor seeks an indictment against him. (US v Mandujano). Failure to exercise right to decline questions will not require suppression of any inculpatory information witness reveals to GJ (US v. Wong) 4 BUT ABA Criminal Justice Standards 3-3.6(d) says prosecutor should inform witness that he may be charged and advise him to seek legal counsel and US Attorney's Manual 9-11.151 says whenever witness is potential target or subject of investigation, he should be informed of subject matter of GJ investigation, his right to remain silent, fact that anything he says may be used against him in future legal proceeding, and that he has right to obtain counsel if he desires. MODEL RULE 8.4(c) furthermore says that it is unprofessional for any lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (27) III. GRAND JURY SUBPOENAS (28): o ABA Criminal Justice Standards 3-3.6(f): can't use GJ subpoenas (or grand jury) in order to obtain evidence in preparation for trial! GJ subpoenas must be used to assist sitting GJ to decide whom to indict only. o Model Rule 3.8(e) "Attorney-Subpoena" Rule: Cannot subpoena attorney to present evidence on past or present client (prohibits government from driving a wedge between D and his counsel by attempting to elicit incriminating information about D from his legal representation. May implicate MR 3.7, forcing counsel to withdraw from representation of his client). Prosecutor may only subpoena attorney if information is NON-PRIVILEGED, HIGHLY MATERIAL AND NOT AVAILABLE FROM OTHER SOURCES. Cannot subpoena attorney if he represented D in civil, not criminal suit. Pg. 29. o Further limitations: Can't be too sweeping to be considered reasonable (only limitation on subpoenas) o Can't use subpoena to assist in any other matters other than those criminal matters immediately before GJ o Locating fugitives, civil or administrative investigation, post-indictment pre-trial discovery/trial prep 9-11.120. o No Parent-Child Privilege: Have to testify against parents or Children if subpoenas o There IS a spousal Privilege: Don't have to testify against spouse o Can't use subpoena just to get testimony from a witness. o If no compliance, GJ holds person in contempt of court. o 5th Amendment limitation---No self-incrimination. IV. EXCULPATORY EVIDENCE: CONSTITUTIONAL APPROACH: o Not required to offer exculpatory information (as a constitutional rule) US v. Williams. ETHICAL APPROACH: o BUT USAM 9-11.233: Disclose exculpatory evidence if prosecutor is "personally aware of substantial evidence that directly negates the guilt of a subject of the investigation o Fingerprints, DNA, or other evidence directly negating guilt as to each element of the offense o CAN disclose more, but only required to disclose evidence directly negating guilt o NDAA Standards 3-3.5(a) ABA Criminal Justice Standards 3-3.6(b): "No prosecutor should knowingly fail to disclose to the GJ evidence which tends to negate guilt or mitigate the offense (broader than USAM) 5 THIRD APPROACH: USAM 9-11.152 advises federal prosecutors to give "favorable consideration" to target's request to appear before GJ (to tell his side of the story), although prosecutor is not obligated to give target of GJ investigation the right to appear and testify under federal system. o True Bill: GJ believes there is probable cause and issues the indictment charging the defendant o 5th Amendment Rights of Witnesses: o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a GJ. o Indictment can be waived for federal crimes (FRCP 7) V. NATURE OF EVIDENCE: o Constitutional: MAY use illegally obtained evidence US v. Calandra. o USAM 9-11-231: Evidence should not be presented to GJ if prosecutor knows it is illegally obtained evidence. o ABA std: 3.36: A prosecutor should recommend that GJ not indict if he or she believes the evidence presented does not warrant an indictment under governing law. Also, prosecutor should only present evidence to GJ which prosecutor believes is appropriate/authorized under law for presentation to GJ. VI. Presenting the Evidence (Efforts to undermine GJ independence): o ABA Criminal Justice Standards 3-3.5(b) and NDAA 4-8.3: Prosecutor injecting personal opinions "This witness is lying". In his off the record comments to GJ, prosecutor may properly instruct GJ on elements of crimes under investigation and answer any legal questions they have, BUT HE MUST NEVER STATE HIS PERSONAL OPINIONS ABOUT THE EVIDENCE, THE WITNESS, ETCETERA. o Remarks in violation of these include denigrating witness's assertion of 5th Amendment o Commenting on witness's retention of counsel or counsel's motives o Suggesting to grand jury how to interpret certain evidence o Commenting on credibility of a witness o Reference to matters not in evidence/unproven activity of D---makes the prosecutor an unsworn witness o Inappropriate for prosecutor to instruct stenographer to go off the record when eliciting witness testimony or instructing GJ (speaking to jurors in halls: NO!) o Inflame passions: Denigrating the Defendant o Curry favor with GJ: Prosecutor gave donuts to jurors o "Off the record" conversations: talking with Jurors in the halls (Pg 45) VII. GRAND JURY SECRECY (34-37) o FRCP 6(e) provides that a person performing official functions in relation to the grand jury may NOT DISCLOSE matters "occurring before the grand jury" except when authorized by the rules or specifically directed to do so by the court. 6 

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