Prosecutorial Ethics—Professor Sozi Tulante—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
o 3.8: Special Rule for Prosecutors
o 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).
CHARGING DECISION:
· Prosecutors have discretion:
o 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.
o Rule 3.8(a): Prosecutor shall “refrain from prosecuting a charge that he knows is not supported by probable cause.”
§ 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
· Charging factors to consider (Not binding):
o Nature & Seriousness of the offense
§ Community: Dangerousness; Economic harm, Peace of mind [Trayvon Martin]
§ Victim: Age or health (Trayvon Martin)
§ Public Attitude: history of non-enforcement; technical violations.
o Deterrent effect of prosecution. deterrence is important objective of crim law; minor punishment might help!
o Person’s culpability
§ Not the same as evidence of guilt: What was his role in the crime?
o Person’s criminal history: Nature of prior criminal involvement, how long ago?
o willingness to cooperate in investigation of others
o Defendant’s circumstances
§ Position of trust (principal, church leader, police officer, corp director) Much more likely to prosecute
§ Is D, older? Have mental or psychological impairments?
o Probable sentence (is D already serving another sentence?)
o Likelihood of conviction (strength of the evidence): Better evidence-more likely to charge (really looking for more than probable cause)
§ 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)
§ ABA 3-3.9(a)(not binding): “sufficient admissible evidence to support a conviction” (lower std than USAM)
§ 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:
o Persons’ background: Race, Sex, Gender, Nat’l Origin, political beliefs, sexual orientation
§ 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.
o 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)
· OVERCHARGING: shouldn’t overcharge for leverage in pleading (not per se unethical, depends on the facts)
o 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?
o Reasons For:
§ Take a bad guy off the street
§ Embolden the Victim (Maybe she’ll testify)
§ Even if you can’t win, Prosecution itself is a big punishment (reputation, time, fear etc.)
o Reasons Against:
§ Emboldens future perpetrators if you don’t win
§ Finite resources; you can’t prosecute everyone so focus on those you can win
§ More danger for Victim (V probably has reasons not to testify, such as future threat)
· ADA doesn’t have to accept Police’s recommendation for charging less/more aggressively. That D cooperates may be consid
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!
§ 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)
§ 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)
