Rules of Professional Conduct

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall not:
   (a) In exercising discretion to investigate or to prosecute, improperly favor or invidiously discriminate against any person;
   (b) File in court or maintain a charge that the prosecutor knows is not supported by probable cause;
   (c) Prosecute to trial a charge that the prosecutor knows is not supported by evidence sufficient to establish a prima facie showing of guilt;
   (d) Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information, which can include impeachment information or information tending to support a motion to suppress evidence, that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
   (e) Intentionally avoid pursuit of evidence or information, or unreasonably delay the disclosure of information or evidence that tends to negate the guilt of the accused or to mitigate the offense, because it may damage the prosecution’s case or aid the defense;
   (f) Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused; or
   (g) In presenting a case to a grand jury, intentionally interfere with the independence of the grand jury, preempt a function of the grand jury, abuse the processes of the grand jury, or fail to bring to the attention of the grand jury material facts tending substantially to negate the existence of probable cause.
    (h) When a prosecutor knows of information that the prosecutor knows or reasonably should know raises a substantial question about whether a person was convicted of an offense that the person did not commit, the prosecutor shall
      (1) promptly disclose that information to: (i) the chief prosecutor of the jurisdiction where the conviction was obtained; (ii) the court in which the conviction was obtained; and, unless the court authorizes a delay, (iii) the convicted person and (iv) if known, the person’s lawyer; and
      (2) if the prosecution occurred in the prosecutor’s jurisdiction and under the authority of the prosecutor’s office, undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the person was convicted of an offense that the person did not commit.
      (3) If there are multiple prosecutorial authorities in the jurisdiction, the disclosure should be made to the prosecutorial authority responsible for the conviction at issue.
      (4) A prosecutor does not violate subparagraph (h) by failing to notify a person or persons or court whose identity or location remains unknown to the prosecutor after undertaking reasonable efforts.
   (i) When a prosecutor knows of information that the prosecutor knows constitutes clear and convincing evidence establishing that a person was convicted in the prosecutor’s jurisdiction and under the authority of the prosecutor’s office of an offense that the person did not commit, the prosecutor shall seek to remedy the conviction.

Comment

   [1] 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 and that guilt is decided upon the basis of sufficient evidence. The constitutional protections in the criminal context serve a fundamentally different purpose than disciplinary proceedings in the ethical context. While this rule may overlap with what constitutional due process requires, it is a rule to govern professional conduct; its requirements are not co-extensive with due process or with statutory obligations or court procedural rules. Paragraph (d) requires disclosure of information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense. However, because the failure to disclose must be intentional, the rule only requires disclosure of such information when its existence is known to the prosecutor. Although another government actor’s knowledge will not be imputed to the prosecutor, a prosecutor’s knowledge may be inferred from circumstances under Rule 1.0(f). Moreover, paragraph (e) independently imposes obligations concerning the intentional avoidance of the pursuit of evidence or information. The disclosure duty under paragraph (d) exists regardless of whether that information might later be deemed immaterial to the outcome of the case and regardless of the prosecutor’s assessment of how the information might be explained away or discredited at trial or ultimately rejected by the fact-finder. For further guidance, see In re Kline, 113 A.3d 202 (D.C. 2015).
   [2] Apart from the special responsibilities of a prosecutor under this rule, prosecutors are subject to the same obligations imposed upon all lawyers by these Rules of Professional Conduct, including Rule 3.4 prohibiting the discriminatory use of peremptory strikes, and Rule 5.3, relating to responsibilities regarding nonlawyers who work for or in association with the lawyer’s office. Indeed, because of the power and visibility of a prosecutor, the prosecutor’s compliance with these Rules, and recognition of the need to refrain even from some actions technically allowed to other lawyers under the Rules, may, in certain instances, be of special importance. For example, Rule 3.6 prohibits extrajudicial statements that will have a substantial likelihood of destroying the impartiality of the judge or jury. In the context of a criminal prosecution, pretrial publicity can present the further problem of giving the public the incorrect impression that the accused is guilty before having been proven guilty through the due processes of the law. It is unavoidable, of course, that the publication of an indictment may itself have severe consequences for an accused. What is avoidable, however, is extrajudicial comment by a prosecutor that serves unnecessarily to heighten public condemnation of the accused without a legitimate law enforcement purpose before the criminal process has taken its course. When that occurs, even if the ultimate trial is not prejudiced, the accused may be subjected to unfair and unnecessary condemnation before the trial takes place. Accordingly, a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.
   [3] Nothing in this Comment, however, is intended to suggest that a prosecutor may not inform the public of such matters as whether an official investigation has ended or is continuing, or who participated in it, and the prosecutor may respond to press inquiries to clarify such things as technicalities of the indictment, the status of the matter, or the legal procedures that will follow. Also, a prosecutor should be free to respond, insofar as necessary, to any extrajudicial allegations by the defense of unprofessional or unlawful conduct on the part of the prosecutor’s office.
   [4] Rectifying the conviction and preventing the incarceration of an innocent person are core values of the judicial system and matters of vital concern to the legal profession. When a prosecutor knows of information that the prosecutor knows or reasonably should know raises a substantial question about whether a person was convicted of an offense that the person did not commit, paragraph (h) requires prompt disclosure to the chief prosecutor of the jurisdiction where the conviction occurred as well as the court in which the conviction was obtained. Prompt disclosure under paragraph (h)(1) does not preclude a reasonable period of time for consultation with the chief prosecutor of the jurisdiction where the conviction was obtained. A disclosure made to a convicted person pursuant to paragraph (h) does not violate Rule 4.2(a) of these Rules. As used in this Rule, the “chief prosecutor” includes the head of the organization or any managerial lawyer in the chief prosecutor’s office. The notification obligations in paragraph (h) assume that the prosecutor knows, or through reasonable efforts can ascertain, the identity and location (i.e., mailing address, email address, or telephone number) of the persons and court to be notified.
   [5] Not every piece of information raising a question about whether a person was convicted of an offense that the person did not commit need be disclosed. Rather, this rule limits the disclosure requirement to information that is sufficient to cause a reasonable lawyer to believe there is substantial question about whether a person was convicted of an offense that the person did not commit. See Rule 1.0(j) for the definition of “reasonable.” The phrase “substantial question” refers to the degree of concern the particular information triggers about whether the person was convicted of an offense that the person did not commit, and not the quantum of information of which the lawyer is aware. See Rule 1.0(m) for the definition of “substantial.” In order to comply with paragraph (h), a prosecutor need not disclose information that the prosecutor knows was previously disclosed, and a prosecutor need not undertake an investigation or take steps to initiate an investigation when the prosecutor knows another prosecutor is already doing so. A prosecutor may not decline to disclose information under Rule 3.8(h) merely because the prosecutor subjectively believes that the information is not credible. On the other hand, whether the information is objectively plausible or could reasonably be credited can appropriately be taken into account when determining whether information ‘raises a substantial question’ of innocence.
   [6] A prosecutor who knows of information that could raise a substantial question about whether a person was convicted of an offense that the person did not commit may, but is not required to, disclose that information as directed in paragraph (h) without further inquiry into whether the information actually raises such a question. A prosecutor’s disclosure of information pursuant to this Rule is not an admission or concession that such information raises a substantial question about whether a person was convicted of an offense that he or she did not commit.
   [7] Under paragraph (i), remedial steps may include requesting that the court appoint counsel for an unrepresented defendant. In order to comply with paragraph (i), a prosecutor need not seek to remedy a conviction where the prosecutor knows another prosecutor is already doing so.