This Appendix identifies the ethical considerations prosecutors face in sexual violence cases and provides main points and authority on the following:
- Responsibilities of the prosecutor
- Code of Professionalism
- Investigation
- The charging decision
- Discovery
- Plea negotiations and plea agreements
- Communication
Responsibilities As Prosecutor
Primary Responsibility
“The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.”71
Societal and Individual Rights and Interests
A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client. A prosecutor should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases. A prosecutor should seek to reform criminal laws whenever it is appropriate and necessary to do so. Societal interests rather than individual or group interests should also be paramount in a prosecutor’s efforts to seek reform of criminal laws.”72
Responsibility Towards Victims
Information Conveyed to Victims
Victims of violent crimes, serious felonies, or actions likely to make the victim an object of physical or other form of retaliation, should be informed of all important stages of the criminal justice proceedings – including, but not limited to:
- Acceptance or rejection of the case by the prosecutor’s office, the return of an indictment, or the filing of criminal charges;
- A determination of defendant’s pre-trial release;
- Any pre-trial disposition;
- The date and results of trial;
- The date and results of sentencing;
- Any proceeding within the knowledge of the prosecutor which does or may result in the defendant no longer being incarcerated – including appellate reversal, parole, release, and escape, unless a legal obligation to inform the victim of such proceeding is imposed by law on another governmental entity; and
- Any other event within the knowledge of the prosecutor, which may put the victim at risk of harm or harassment.73
Victim Orientation
To the extent feasible, and when deemed appropriate by the chief prosecutor, the prosecution should provide a criminal justice process orientation to crime victims and explain their prosecutorial decisions, including the rationale used to reach them. Special orientation should be given to child and spousal abuse victim and their families, whenever practicable.74
Victim Assistance
To the extent feasible, and unless a legal obligation to provide such assistance is imposed by law on another governmental entity, the chief prosecutor should develop policies and procedures for providing services to crime victims – including, but not limited to the following:
- Assistance in obtaining the return of property held in evidence;
- Assistance in applying for witness fees and compensation if provided for by law or local rule;
- Assistance in obtaining restitution orders at the sentencing;
- Assistance in appropriate employer intervention concerning required court appearance;
- Assistance with necessary transportation and lodging arrangements;
- Assistance in reducing the time the victim has to wait for any court appearance to a minimum; and
- Assistance in reducing overall inconvenience whenever possible and appropriate.
The prosecutor should be aware of any obligations imposed by victims’ rights legislation in his or her particular jurisdiction.75
Code of Professionalism
A prosecutor should always conduct herself/himself in a professional manner. “[T]he prosecutor’s code of professionalism should include, among other provisions, the following:76
a. A prosecutor should act with candor, good faith, and courtesy in all professional relations.
b. A prosecutor should act with integrity in all communications, interactions, and agreements with opposing counsel. A prosecutor should not express personal animosity toward opposing counsel, regardless of personal opinion.
c. A prosecutor should always display proper respect and consideration for the judiciary, without forgoing the right to justifiably criticize individual members of the judiciary at appropriate times and in appropriate circumstances.
d. A prosecutor should be punctual for all court appearances. When absence or tardiness is unavoidable, prompt notice should be given to the court and opposing counsel.
e. A prosecutor should conduct himself or herself with proper restraint and dignity throughout the course of proceedings. Disruptive conduct or excessive argument is always improper.
f. A prosecutor should treat witnesses fairly and professionally and with due consideration. In questioning witness testimony, a prosecutor should not engage in a line of questioning intended solely to abuse, insult or degrade the witness. Examination of a witness’s credibility should be limited to legally permitted impeachment techniques.
g. A prosecutor should avoid obstructive and improper tactics. Examples of such tactics include, but are not limited to, knowingly:
i. Making frivolous objections, or those for the sole purpose of disrupting opposing counsel;
ii. Attempting to proceed in a manner that is obviously inconsistent with a prior ruling by the court;
iii. Attempting to ask clearly improper questions or introduce clearly inadmissible evidence;
iv. Engaging in dilatory actions or tactics; and
v. Creating or taking unlawful advantage of prejudicial or inflammatory arguments or publicity.”
Investigation
Legal Advice
“Although law enforcement agencies or individual law enforcement officers are not clients in criminal cases or employees of the prosecutor’s office, the prosecutor may provide independent legal advice to local law enforcement agencies concerning specific prosecutions and, when appropriate, the proper interpretation of the criminal laws, the sufficiency of evidence to commence criminal charges or arrest, the requirements for obtaining search warrants for physical evidence and electronic surveillance, and similar matters relating to the investigation of criminal cases.
The prosecutor should serve in such an advisory capacity to promote lawful investigatory methods that will withstand later judicial inquiry. The prosecutor should encourage law enforcement officers to seek legal advice as early as possible in the investigation of a criminal case. Where possible, the prosecutor should identify a primary point of contact within the prosecutor’s office to receive and refer legal inquiries from particular law enforcement agencies.”77
Immunity
The problem is one of immunity, or more precisely lack of it. The prosecutor is given absolute immunity for functions “intimately associated with the judicial phase of the criminal process” including “initiating the prosecution and in presenting the State’s case.”78 Absolute immunity works to defeat a lawsuit at its inception.
Acting as your own investigator, or giving legal advice to police during investigation of a criminal case is not “intimately associated with the judicial phase of the criminal process” and is granted only qualified immunity.79 Qualified immunity is an objective standard that allows liability only where the official violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”80
The commentary to the NDAA Standards recognizes this important distinction: “[f]urthermore, the prosecuting attorney may be restricted from any active participation in the police function by the threatened loss of immunity to civil damages in instances where participation is beyond the scope of advisor and, therefore, not an integral part of the judicial process. The prosecutor must always be cognizant that his quasi-judicial immunity afforded by the courts in civil liability suits is limited to actions taken in advancement of the traditional prosecution function.”81
What kinds of things have been ruled as “intimately associated” with the judicial phase?
- Drafting legal documents.
- Determining probable cause to proceed.
- Deciding to file charges.
- Presenting information.
- Motions to the court.
What kinds of things are not?
- Attesting to the truth of facts in support of an arrest warrant or signing a search warrant affidavit.82
Interviewing witnesses
- Rule 3.7(a) of the ABA Model Rules of Professional Conduct states, in the pertinent part, “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.”83 Unless a prosecutor is prepared to become an impeaching witness in a case, a police officer, investigator, or other reliable third party should be present for interviews with victims and witnesses.
The Charging Decision
“The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”84
Section 4-2.4 of the NDAA National Prosecution Standards states, “[t]he prosecutor should only file those charges that are consistent with the interests of justice. Factors that may be relevant to this decision include:85
- The nature of the offense, including whether the crime involves violence or bodily injury;
- The probability of conviction;
- The characteristics of the accused relevant to his or her blameworthiness or responsibility, including their criminal history;
- Potential deterrent value of a prosecution to the offender and to society at large;
- The value to society of incapacitating the accused in the event of a conviction;
- The willingness of the offender to cooperate with law enforcement;
- The defendant’s relative level of culpability in the criminal activity;
- The status of the victim, including the victim’s age or special vulnerability;
- Whether the accused held a position of trust at the time of the offense;
- Excessive costs of prosecution in relation to the seriousness of the offense;
- Recommendation of the involved law enforcement personnel;
- The impact of the crime on the community; and
- Any other aggravating or mitigating circumstances.”
Other Charging Considerations
- Prosecutors must consider the effect of Crawford v. Washington86 on their case when making charging and other decisions.
- Prosecutors have sole, but not unlimited, discretion in deciding whom and what to charge. Obviously, the charging decision cannot be based on race, religion, or other invidious classification.87
To Determine Whether to Charge
- Assess the defendant’s factual guilt.
- Consider the victim’s ability to testify;
- Competency
- Credibility
- Ability to recollect and relate details
- Consider the defendant’s version of events, denials, and/or alibis; and
- Review any medical records and/or physical evidence.
- Consider the victim’s ability to testify;
- Examine the legal sufficiency of the evidence.
- Consider all possible legal issues that may rise; and
- Consider potential appellate issues.
- Charge the appropriate crime(s).
- Label the conduct appropriately and accurately;
- Charge the most serious crime(s) supported by the evidence;
- Charge co-occurring crimes; and
- Charge offenses related to intimidation.
DISCOVERY
“The prosecutor in a criminal case 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.”88
The Supreme Court has, of course, weighed in on the prosecutor’s duty to disclose information. Some of the applicable decisions are listed below:
- United States v. Ruiz , 536 U.S. 622 (2002).
- Strickler v. Greene, 527 U.S. 263 (1999): An “open file” policy means the defendant can rely on the file to contain all material the prosecutor is obligated to disclose. If the file does not contain all the material the prosecutor is obligated to disclose, the “open file” policy will be no defense to a Brady violation.
- Kyles v. Whitley , 514 U.S. 419, 4237 (1995): “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”
- Arizona v. Youngblood, 488 U.S. 51 (1989): A good faith failure to disclose material that is merely potentially useful to a defendant is not a violation of due process.
- United States v. Bagley, 437 U.S. 667 (1985): “Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.”
- United States v. Agurs, 427 U.S. 97, 107 (1976): There is a duty to disclose Brady information even without defense request.
- Giglio v. United States, 405 U.S. 150, 154 (1972): Evidence that affects the credibility of a witness whose testimony may impact the defendant’s guilt or innocence is required to be disclosed.
- Brady v. Maryland, 373 U.S. 83, 87 (1963): “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution.”
Determining Whether to Disclose
Rather than disclosing sensitive information and then filing a motion in limine to preclude its admission at trial, the better course when dealing with confidential and privileged records – or other such information – is to file a motion for a protective order to determine the necessity, timing, and manner of disclosure to the defense.
Additional Considerations89
- Mandatory versus discretionary disclosure.
- Generally, the prosecutor and police do not serve as investigators for the defendant. However, it is problematic to decline to pursue evidence because, if true, it might harm the case.
- The attorney work product privilege applies to prosecutors.
PLEA NEGOTIATIONS AND PLEA AGREEMENTS
Office Policy
- “No drop” policies should, at most, represent a presumption against dismissal of charges. For good cause, including developments concerning availability of sufficient admissible evidence and the interests of the victim (including victim safety), the policy should permit dismissal after careful review.
- Other policies
- Individual judges may have principles they adhere to regarding the circumstances under which they will accept or approve of plea agreements.
- Common practice within an office or jurisdiction may dictate general principles and policies regarding plea offers.
Know Your Adversary and Be Consistent
“Similarly situated defendants should be afforded substantially equal plea agreement opportunities.”90
The National Prosecution Standards state that prior to negotiating a plea agreement, the prosecution should consider the following factors:91
- The nature of the offense(s);
- The degree of the offense(s) charged;
- Any possible mitigating circumstances;
- The age, background, and criminal history of the defendant;
- The expressed remorse or contrition of the defendant, and his or her willingness to accept responsibility for the crime;
- Sufficiency of admissible evidence to support a verdict;
- Undue hardship caused to the defendant;
- Possible deterrent value of trial;
- Aid to other prosecution goals through non-prosecution;
- A history of non-enforcement of the statute violated;
- The potential effect of legal rulings made in the case;
- The probable sentence if the defendant is convicted;
- Society’s interest in having the case tried in a public forum;
- The defendant’s willingness to cooperate in the investigation and prosecution of others;
- The likelihood of prosecution in another jurisdiction;
- The availability of civil avenues for victim relief or restitution through criminal proceedings;
- The willingness of the defendant to waive his or her right to appeal;
- The willingness of the defendant to waive (release) his or her right to pursue potential civil causes of action arising from their arrest – against the victim, witnesses, law enforcement agencies/personnel, or the prosecutor and his or her staff/agents;
- With respect to witnesses, the prosecution should consider the following:
- The availability and willingness of witnesses to testify;
- Any physical or mental impairment of witnesses;
- The certainty of their identification of the defendant;
- The credibility of the witness;
- The witness’s relationship with the defendant;
- Any possible improper motive of the witness;
- The age of the witness; and
- Any undue hardship to the witness caused by testifying.
- With respect to victims, the prosecution should consider those factors identified above in addition to the following:
- The existence and extent of physical injury and emotional trauma suffered by the victim;
- Economic loss suffered by the victim; and
- Any undue hardship to the victim caused by testifying.
Consider the Innocence of the Defendant
“The prosecutor should always be vigilant for the case where the accused may be innocent of the offense charged. The prosecutor must satisfy himself or herself that there is a sound factual basis for all crimes to which the defendant will plead guilty under any proposed plea agreement.”92
Conditions of the Plea Offer
- Make the offer in writing.
- Set a deadline and stick to it.
- “Prior to reaching a plea agreement and subject to the standards herein and the law of the jurisdiction, the prosecutor may set conditions on a plea agreement offer, such as:93
- The defendant’s acceptance of the offer within a specified time period that would obviate the need for extensive trial preparation;
- The defendant’s waiver of certain pre-trial rights, such as the right to discovery;
- The defendant’s waiver of certain pre-trial motions such as a motion to suppress or dismiss; or
- The defendant’s waiver of certain trial or post-trial rights, such as the right to pursue an appeal.”
Communications94
Balance the Rights of a “Fair Trial” and “Free Press”
“The prosecutor should strive to protect both the rights of the individual accused of a crime and the right of the public to know….” and “maintain a relationship to the media that will facilitate the appropriate flow of information necessary to educate the public.”95
Trial Publicity
ABA Model Rule of Professional Responsibility, Rule 3.6:
a. “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
b. Notwithstanding paragraph (a), a lawyer may state:
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- the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
- information contained in a public record;
- that an investigation of a matter is in progress;
- the scheduling or result of any step in litigation;
- a request for assistance in obtaining evidence and information necessary thereto;
- a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
- in a criminal case, in addition to subparagraphs (1) through (6):
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i. the identity, residence, occupation and family status of the accused;
ii. if the accused has not been apprehended, information necessary to aid in apprehension of that person;
iii. the fact, time and place of arrest; and
iv. the identity of investigating and arresting officers or agencies and the length of the investigation.
c. Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
d. No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).”