RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Prosecutor’s Duty Under Rules of Professional Conduct

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROSECUTORIAL MISCONDUCT

 

Prosecutor’s Duty Under Rules of Professional Conduct

 

 

 

R.I. RULES OF PROF’L CONDUCT R. 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

  1. refrain from prosecuting 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, such as the right to a preliminary hearing;
  4. 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;
  5. 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
  6. Rule 3.6 or this Rule;
  7. not, without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer to provide evidence concerning a person who is or was represented by the lawyer when such evidence was obtained as a result of the attorney-client relationship.

 

  • We remind every prosecutor of the words of Justice Sutherland in Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935) (quoted in State v. Verlaque, 465 A.2d 207, 214 (RI 1983):

 

  1. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

 

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