Bar Implements New Ethics Rules for Prosecutors

One of the biggest complaints in the criminal justice system is over the role of prosecutors – who on the one hand are supposed to represent the People of the state, but also operate as partisan advocates whose job it is to gain convictions.

Political and philosophical considerations often create an incentive or a perceived incentive to win at all costs.  The State Bar has been criticized for being slow to act to stem prosecutorial misconduct.  Studies have found in California that there have rarely been sanctions given to prosecutors who violate rules such as Brady (from the 1963 federal case requiring prosecutors to disclose evidence favorable to the defendant) by withholding exculpatory evidence.

On Monday, the the State Bar of California began its plan to implement the portions of a new ethics rule, Rule 5-110, regarding the responsibilities of criminal prosecutors that the California Supreme Court approved in an order yesterday. (Read the Court order.)

The new rules in the State Bar’s Rules of Professional Conduct add new requirements, including a requirement that when a prosecutor “knows of clear and convincing evidence” establishing that a wrongful conviction occurred, the prosecutor must seek to remedy the conviction. The new provisions are similar to the provisions in American Bar Association Model Rule 3.8.

“In order to ensure public trust in the justice system and to protect the rights of defendants, prosecutors should be held to high ethical standards,” said State Bar President James P. Fox. Fox spent nearly three decades as the elected district attorney in San Mateo County.

The State Bar Board of Trustees voted in October 2016 to adopt this rule, and advanced it to the California Supreme Court for final approval.

According to a release, “The Court order approved most portions of the new Rule 5-110. The portions approved by the Court go into effect as of May 1, 2017, according to the order.

“The Court order sent a portion of Rule 5-110, regarding prosecutors’ ethical disclosure obligations, back to the State Bar’s Board of Trustees to consider alternative revisions. Current Rule 5-220 remains in force and prohibits all attorneys, including prosecutors, from suppressing any evidence that the attorney is required by law to reveal or produce.”

Under Rule 5-110, the prosecutor shall:

1. Not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause;
2. 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;
3. Not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal has approved the appearance of the accused in propria persona;
4. Reserved.
5. Exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including 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 5-120;
6. When a prosecutor 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, the prosecutor shall: (1) Promptly disclose that evidence to an appropriate court or authority, and (2) If the conviction was obtained in the prosecutor’s jurisdiction, (i) Promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) 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; and
7. When a prosecutor 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, the prosecutor shall seek to remedy the conviction.

A key recognition is this: “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 question many defense attorneys are asking is whether this goes far enough and whether these provisions are actionable.

—David M. Greenwald reporting

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