Tuesday, May 2, 2017
S.C. Approves Prosecutorial Ethics Changes, in Part
Justices Send Portion of Trustees’ Proposal Back to Board for Reconsideration
By KENNETH OFGANG, Staff Writer
The state Supreme Court yesterday adopted some, but not all, of the State Bar’s proposed changes in ethics rules governing duties of prosecutors.
The new Rule 5-110 (“Special Responsibilities of a Prosecutor”) in the State Bar’s Rules of Professional Conduct adds 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 based on American Bar Association Model Rule 3.8.
The State Bar Board of Trustees voted to adopt this rule in October of last year, and a formal request was submitted to the high court in January.
The approved provisions are effective immediately.
The high court sent a portion of the rule, regarding prosecutors’ ethical disclosure obligations, back to the Board of Trustees to consider alternative revisions.
The alternative proposed by the court would eliminate a requirement that prosecutors, 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.
Instead, prosecutors’ general duty to disclose exculpatory or mitigating information would extend to sentencing. The court also proposed adding a sentence to explain that the duty of disclosure extends to “information that casts significant doubt on the accuracy or admissibility of witness testimony or other evidence on which the prosecution intends to rely.”
The court’s alternative would also add a sentence, sought by prosecutors but rejected by the Commission for the Revision of the Rules or Professional Conduct, stating:
“Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts.”
The high court rejected a provision under which 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. The court instead directed the board “to reconsider whether this is an ethical obligation that should be imposed on all attorneys, not only prosecutors.”
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.
Among the provisions approved by the high court:
•A prosecutor is 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 are 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;
•A duty is 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; and
•Prosecutors are 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 barred from making.
In a release, the State Bar said it is “determining a process and timeline for addressing the alternative revision from the Court. “ The Board of Trustees, the release said, will likely consider the instructions in the order at its May 11-12 meeting, and may refer the matter back to the rules commission.
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