Current through Register Vol. 39, No. 6, September 16, 2024
(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 a
preliminary hearing;
(d) after
reasonably diligent inquiry, make timely disclosure to the defense of all
evidence or information required to be disclosed by applicable law, rules of
procedure, or court opinions including 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;
(e) not
subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client, or participate in the application for
the issuance of a search warrant to a lawyer for the seizure of information of
a past or present client in connection with an investigation of someone other
than the lawyer, unless:
(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.
(g)
When a prosecutor knows of new, credible evidence or information creating a
reasonable likelihood that a convicted defendant did not commit an offense for
which the defendant was convicted, the prosecutor shall:
(1) if the conviction was obtained in the
prosecutor's jurisdiction, promptly disclose that evidence or information to
(i) the defendant or defendant's counsel of record if any, and (ii) the North
Carolina Office of Indigent Defense Services or, in the case of a federal
conviction, the federal public defender for the jurisdiction; or
(2) if the conviction was obtained in another
jurisdiction, promptly disclose that evidence or information to the
prosecutor's office in the jurisdiction of the conviction or to (i) the
defendant or defendant's counsel of record if any, and (ii) the North Carolina
Office of Indigent Defense Services or, in the case of a federal conviction,
the federal public defender for the jurisdiction of conviction.
(h) A prosecutor who concludes in
good faith that evidence or information is not subject to disclosure under
paragraph (g) does not violate this rule even if the prosecutor's conclusion is
subsequently determined to be erroneous.
Comment
[1] A
prosecutor has the responsibility of a minister of justice and not simply that
of an advocate; the prosecutor's duty is to seek justice, not merely to convict
or to uphold a conviction. This responsibility carries with it specific
obligations to see that the defendant is accorded procedural justice and that
guilt is decided upon the basis of sufficient evidence. Precisely how far the
prosecutor is required to go in this direction is a matter of debate and varies
in different jurisdictions. See the ABA Standards of Criminal Justice Relating
to the Prosecution Function. A systematic abuse of prosecutorial discretion
could constitute a violation of Rule 8.4.
[2] The prosecutor represents the sovereign
and, therefore, should use restraint in the discretionary exercise of
government powers, such as in the selection of cases to prosecute. During
trial, the prosecutor is not only an advocate, but he or she also may make
decisions normally made by an individual client, and those affecting the public
interest should be fair to all. In our system of criminal justice, the accused
is to be given the benefit of all reasonable doubt. With respect to evidence
and witnesses, the prosecutor has responsibilities different from those of a
lawyer in private practice; the prosecutor should make timely disclosure to the
defense of available evidence known to him or her that tends to negate the
guilt of the accused, mitigate the degree of the offense, or reduce the
punishment. Further, a prosecutor should not intentionally avoid pursuit of
evidence merely because he or she believes it will damage the prosecutor's case
or aid the accused.
[3] 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.
[4] Every prosecutor should be aware of the
discovery requirements established by statutory law and case law. See, e.g.,
N.C. Gen. Stat. §
15A-903 et. seq, Brady v.
Maryland, 373 U.S.
83 (1963); Giglio v. U.S.,
405 U.S.
150 (1972); Kyles v. Whitley,
514 U.S.
419 (1995). 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.
[5] Paragraph (e) is intended to limit the
issuance of lawyer subpoenas in grand jury and other criminal proceedings, and
search warrants for client information, to those situations in which there is a
genuine need to intrude into the client-lawyer relationship. The provision
applies only when someone other than the lawyer is the target of a criminal
investigation.
[6] 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 that a prosecutor may
make which comply with Rule 3.6(b) or 3.6(c).
[7] 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.
[8] When a prosecutor knows of new, credible
evidence or information creating a reasonable likelihood that a defendant did
not commit an offense for which the defendant was convicted in the prosecutor's
district, paragraph (g)(1) requires prompt disclosure to the defendant.
However, if disclosure will harm the defendant's interests or the integrity of
the evidence or information, disclosure should be made to the defendant's
lawyer if any. Disclosure must be made to North Carolina Indigent Defense
Services (NCIDS) or, if appropriate, the federal public defender, under all
circumstances regardless of whether disclosure is also made to the defendant or
the defendant's lawyer. If there is a good faith basis for not disclosing the
evidence or information to the defendant, disclosure to NCIDS or the federal
public defender and to any counsel of record satisfies this rule. If the
conviction was obtained in another jurisdiction, paragraph (g)(2) allows the
prosecutor promptly to disclose the evidence or information to the prosecutor's
office in the jurisdiction of conviction in lieu of any other disclosure. The
prosecutor in the jurisdiction of the conviction then has an independent duty
of disclosure under paragraph (g)(1). In lieu of disclosure to the prosecutor's
office in the jurisdiction of conviction, paragraph (g)(2) requires disclosure
to the defendant or to the defendant's lawyer, if any, and to NCIDS or, if
appropriate, the federal public defender.
[9] The word "new" as used in paragraph (g)
means evidence or information unknown to a trial prosecutor at the time of the
conviction or, if known to a trial prosecutor at the time of the conviction,
never previously disclosed to the defendant or defendant's legal counsel. When
analyzing new evidence or information, the prosecutor must evaluate the
substance of the information received, and not solely the credibility of the
source, to determine whether the evidence or information creates a reasonable
likelihood that the defendant did not commit the offense.
[10] Nevertheless, a prosecutor who receives
evidence or information relative to a conviction may disclose that evidence or
information as directed in paragraph (g)(1) and (2) without examination to
determine whether it is new, credible, or creates a reasonable likelihood that
a convicted defendant did not commit an offense. A prosecutor who receives
evidence or information subject to disclosure under paragraph (g) does not have
a duty to undertake further investigation to determine whether the defendant is
in fact innocent.
[11] A
prosecutor's independent judgment, made in good faith, that the new evidence or
information is not of such nature as to trigger the obligations of paragraph
(g), though subsequently determined to have been erroneous, does not constitute
a violation of this Rule.
