Rule 3.8. Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) 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;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either 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;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004. Louisiana Rule 3.8 differs from ABA Model Rule of Professional Conduct 3.8 (2009) in two significant respects:

First, paragraph (d) of the Louisiana Rule, which was amended effective April 12, 2006, requires disclosure of evidence known to the prosecutor that the prosecutor “knows, or reasonably should know” is exculpatory or mitigating. The Louisiana Rule imposes a significantly greater obligation on prosecutors, given that it requires disclosure not only of evidence that the prosecutor ”knows” to be exculpatory, but also disclosure of evidence that the prosecutor “reasonably should know” is exculpatory.

Second, the Model Rule, as revised by the ABA in 2009, contains two paragraphs not included in Louisiana Rule 3.8. These paragraphs impose obligations on a prosecutor with regard to wrongfully convicted defendants. Model Rule paragraph 3.8(g) requires a prosecutor who “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” to ”(1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, to promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.” See Model Rule 3.8(g). Similarly, Model Rule paragraph 3.8(h) requires a prosecutor who “knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit” to “seek to remedy the conviction.” See Model Rule 3.8(h). Note that the LSBA Rules of Conduct Committee is considering recommending adoption of these provisions in Louisiana.

Comments to ABA Model Rule 3.8

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.

[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.

[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law- enforcement personnel and other relevant individuals.

[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.

[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

Annotations

Generally

Unlike other litigating lawyers, prosecutors are not merely advocates and officers of the courts, but also administrators of justice who have a duty to “seek justice, [and] not merely to convict.” See ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–1.2 (3d ed. 1992). For other standards addressing the special responsibilities of prosecutors, see ABA Standards on Prosecutorial Investigations (2008); National Dist. Attorneys’ Assoc. Prosec. Stds. (2d ed. 1991).

The Charging Decision

Paragraph (a) of this rule prohibits a prosecutor from accepting and prosecuting charges that the prosecutor “knows” are not supported by “probable cause.” La. Rules of Prof’l Conduct R. 3.8(a) (2004). Prosecutors have an enormous amount of discretion in making charging decisions. In exercising discretion in determining whether to charge an accused with a crime, a prosecutor may properly consider the following factors, among others: reasonable doubt that the accused is guilty; the extent of harm caused by the offense; the disproportion of the authorized punishment in relation to the offense or offender; the motives of the complainant; the reluctance of the victim or witnesses to testify; the cooperation of the accused in identifying other wrongdoers; and the likelihood of prosecution by another jurisdiction. See ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.9(b) (3d ed. 1992). The charging decision should not turn to any extent on the “personal or political advantages or disadvantages which might be involved” or on the prosecutor’s “desire to enhance his or her record of conviction.” Id. std. 3–3.9(d) (3d ed. 1992). Furthermore, a 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 offense.” Id. std. 3–3.9(f).

General Pretrial Responsibilities

Paragraph (b) of the rule requires a prosecutor to make reasonable efforts to ensure that the accused is represented by counsel. La. Rules of Prof’l Conduct R. 3.8(b) (2004). Paragraph (c) prohibits a prosecutor from requesting that an accused person waive important pretrial rights such as the right to a preliminary hearing. Id. 3.8(c); see also ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.10(c) (3d ed. 1992). Furthermore, the ABA Standards Relating to the Administration of Criminal Justice further admonish prosecutors against communicating with an accused “unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused.” Id. std. 3–3.10(a). As to preliminary hearings, a prosecutor “should not seek to delay a preliminary hearing” if the accused is in custody, nor should he or she seek a continuance of such a hearing “solely for the purpose of mooting the preliminary hearing by securing an indictment.” Id. stds. 3–3.10(d-e).

Disclosure of Exculpatory Brady Material

Paragraph (d) of the rule requires a prosecutor to disclose promptly all information that the prosecutor knows, or should know, is exculpatory or mitigating. See La. Rules of Prof’l Conduct R. 3.8(d) (2004); ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.11 (3d ed. 1992); Brady v. Maryland, 373 U.S. 83 (1963); see e.g., State v. Carter, 939 So. 2d 600, 603 n.2 (La. Ct. App. 2nd Cir. 2006) (commending assistant district attorney for compliance with Rule 3.8(d) by acknowledging the record indicated an absence of a valid waiver of defendant’s privilege against self-incrimination). In addition, a prosecutor has a duty to review all files under the prosecutor’s control and under the control of relevant law enforcement officers to search for exculpatory information. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding that a prosecutor has duty to learn of any favorable evidence known to others acting on state’s behalf); State v. Marshall, 660 So. 2d 819, 826 (La. 1995) (holding that prosecutor has a duty to learn of any favorable evidence known to anyone acting on state’s behalf, including police officers); see also State v. Oliver, 682 So. 2d 301, 311 (La. Ct. App. 4th Cir. 1996).

What constitutes “exculpatory” evidence is often a matter of confusion. However, the term “exculpatory evidence” certainly includes evidence that may reasonably be used to impeach any witness whom the state may call as a witness at trial including the following: evidence relating to any plea bargains or promises made to such witnesses, see In re Jordan, 913 So. 2d 775, 781 (La. 2005) (holding that a witness’ statement to police that it was dark and she did not have her glasses when she witnessed the crime was exculpatory evidence that the prosecutor had a duty to disclose); State v. Lindsey, 621 So. 2d 618, 628 (La. Ct. App. 2d Cir. 1993); State v. Williams, 338 So. 2d 672, 677 (La. 1976); evidence relating to any prior criminal record of arrests or convictions of such witnesses, see State v. Whitlock, 454 So. 2d 871, 873 (La. Ct. App. 4th Cir. 1984); evidence relating to any witness statements that are inconsistent with statements made by that or other witnesses at any time, see State v. Hunter, 648 So. 2d 1025, 1034 (La. Ct. App. 4th Cir. 1994) (witness’ prior inconsistent statement on a material issue is exculpatory).

Furthermore, “exculpatory” evidence includes evidence that any eyewitness who participated in an identification procedure identified a person other than the accused as the perpetrator of the charged crime, see State v. Falkins, 356 So. 2d 415, 417 (La. 1978), or failed to identify the accused as a participant in the charged crime, see State v. Curtis, 384 So. 2d 396, 398 (La. 1980); State v. Landry, 384 So. 2d 786, 788 (La. 1980). Finally, the term “exculpatory evidence” should also include any evidence establishing that the witness hesitated or was in any way equivocal in his or her identification of accused as a participant in the charged crime.

Despite that a number of criminal convictions have been reversed in Louisiana over the years as a result of the failure of prosecutors to disclose exculpatory Brady material, disciplinary actions against prosecutors are rare.

On July 8, 2009, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454 entitled Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense. This opinion comprehensively discusses a prosecutor’s duties under Model Rule 3.8.

Applicability of Louisiana Rules of Professional Conduct to Federal Prosecutors

In the wake of the McDade Amendment of 1998, “[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” See 28 U.S.C. § 530B(a) (1998).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving public officials who engage in conduct that is prejudicial to the administration of justice or who state or imply an ability to influence improperly a government agency or official: disbarment, when a lawyer in an official position misuses that position with the intent to obtain a significant benefit for himself or another, or with the intent to cause serious or potential injury to a party or to the integrity of the legal process; suspension, when such a lawyer knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process; reprimand, when such a lawyer negligently fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process; and, admonition, when such a lawyer engages in an isolated instance of negligence in not following proper procedures or rules, and causes little or no actual or potential injury to a party or to the integrity of the legal process. ABA Stds. for Imposing Lawyer Sanctions std. 5.2 (1992)(Failure to Maintain the Public Trust); id. stds. 5.21-5.24.

Notes

This page was updated on August 5, 2013.