Friday, October 7, 2016

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State Bar Board Approves Ethics Rule on Prosecutors’ Duties

By KENNETH OFGANG, Staff Writer

The State Bar reported yesterday that its Board of Trustees has adopted a proposed new ethics rule regarding the special duties of prosecutors, specifically addressing their responsibility to disclose evidence to the defense.

The rule must be approved by the California Supreme Court in order to take effect.

Proposed new rule 5-110, which is similar to American Bar Association Model Rule 3.8, would require broad disclosure of evidence the prosecutor knows or reasonably should know would be helpful to the defense.

State Bar President James P. Fox, who was the district attorney for San Mateo County for nearly 30 years and also practiced on the defense side, hailed the approval. “Prosecutors should be held to high ethical standards not only to protect the rights of defendants but also to ensure public trust and confidence in the justice system,” Fox said in a statement.

Larger Project

The State Bar said the proposed rule will go to the high court in advance of a larger project to overhaul the Rules of Professional Conduct for the first time since the 1980s. The State Bar’s Commission for the Revision of the Rules or Professional Conduct, chaired by Presiding Court of Appeal Justice Lee Edmon of this district’s Court of Appeal, has developed 68 new and amended rules to be finalized by the Board of Trustees and submitted to the court by the end of March 2017.

Among the changes that would be made by the rule, as explained in the commission summary released with the text, are:

•A prosecutor would be required to make reasonable efforts to assure that the accused has been advised of the right to counsel, and given a reasonable opportunity to obtain legal assistance;

•Prosecutors would be barred from seeking a waiver of pretrial rights from an accused who is not represented by a lawyer, unless the court has approved self-representation;

•The duty to refrain from suppressing evidence when there is a legal obligation to disclose it would be broadened to require disclosure of all exculpatory evidence and, absent a court order to the contrary, any unprivileged information that might be helpful to the defense at sentencing;

•Prosecutors would be barred from subpoenaing lawyers to present evidence about past or present clients to a grand jury or a court, except in limited situations;

•Prosecutors would be required to exercise reasonable to care to prevent investigators, police officers and others under their supervision and direction from making out-of-court comments of the type that prosecutors and other lawyers are prohibited from making under current rules;

•A duty would be imposed on prosecutors to disclose new, credible and material evidence creating a reasonable likelihood that a convicted defendant is innocent, and to seek to remedy a conviction where the prosecutor knows of clear and convincing evidence of the defendant’s innocence.

The commission said it had approved the rule by a vote of 11-3, and had unanimously requested that the high court approve the rule on an expedited basis.

Prosecutors Object

The commission, which declined to modify its proposal after considering public comment, noted that the U.S. Department of Justice, the California District Attorneys Association, and the State Bar’s Office of Chief Trial Counsel opposed the proposal as approved. Support came from, among others, the California Public Defenders Association, the State Bar Standing Committee on Professional Responsibility and Conduct, and the Office of the State Public Defender.

The objectors, the commission explained, sought an amendment relieving prosecutors of the duty to disclose impeachment evidence unless the identity of the defense witness is made available in advance of trial; an alternative statement of the disclosure standard to make clear that the duty of disclosure is limited to cases where the duty is statutory or constitutional, as expressed in the case law; and an effort to amend the criminal discovery statute, which prosecutors argue is inapplicable before trial, the commission explained.

Objectors also sought addition of a “timeliness” element on the requirement that the prosecutor ensure that the defendant has been advised of the right to counsel; inclusion in the “black letter text” of the rule a provision, now included in the comments, of a statement that the prosecutor’s duty to disclose exculpatory information is broader than the materiality standard of Brady v. Maryland; a clarification of the “know or reasonably should know” standard for disclosure to address a duty to search for exculpatory evidence, as well as issues of recklessness, gross negligence, and willful blindness; and a provision limiting discipline under the rule to cases in which an individual prosecutor has actual knowledge.

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Full Text of Proposed Rule 5-110 as Approved by

The State Bar Board of Trustees

Rule 5-110 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(A) Not institute or continue to prosecute 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 unless the tribunal has approved the appearance of the accused in propria persona;

(D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor that the prosecutor knows or reasonably should know mitigates the sentence, 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 or work product protection;

(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) 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.

(G) 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,

(a) Promptly disclose that evidence to the defendant unless a court authorizes delay, and

(b) 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.

(H) 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.