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self-study / Legal Ethics

High court weighs new prosecutor rules

0430 ldj wendy chang

Michael Antonovich Antelope Valley Courthouse

Wendy W.Y. Chang

Judge, Los Angeles County Superior Court

Loyola Law School, 1995

Wendy is based in the firm's Los Angeles office. She is a member of the American Bar Association's Standing Committee on Ethics and Professional Responsibility. She served as an advisor to the State Bar of California's Commission for the Revision of the Rules of Professional Conduct and is a past chair of the State Bar of California's Standing Committee on Professional Responsibility and Conduct. Wendy is a certified specialist in legal malpractice law by the State Bar of California's Board of Legal Specialization.

On Oct. 1, the State Bar Board of Trustee's adopted the California Rules Revision Commission's proposed amended California Rules of Professional Conduct, Rule 5-110, "Special Responsibilities of a Prosecutor," and Rule 5-220, "Suppression of Evidence." The rules now head to the California Supreme Court for review and potential approval.

Proposed Rule 5-110 is a substantial re-write of the existing rule. Current Rule 5-110 addresses prosecutorial duties relating to probable cause in the institution or maintenance of a criminal prosecution. It contains a single paragraph, with no comments. By contrast, the proposed rule contains eight sections and nine comments. The comments clarify application of the proposed rule. Based on the concept that a prosecutor is a "minister of justice" and not simply an advocate (Comment 1), Proposed Rule 5-110 is largely based upon ABA Model Rule 3.8, and seeks to bring California's prosecutorial misconduct standards in line with that of the rest of the nation. The proposed rule states:

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.

Current Rule 5-110 is carried over in substance in Proposed Rule 5-110(A). The remaining seven sections, (B)-(H), are new to the California rules, and based upon Model Rule 3.8.

In response to public comments, the commission added a mens rea requirement (knows/reasonably should know) to Proposed Rule 5-110(D) to protect against accidental and/or negligent violation of the rule. Thus, the proposed rule contains no blanket duty, without more, to search for exculpatory evidence. "Knows" connotes the prosecutor's actual knowledge of the existence of evidence or information, actual knowledge which can be inferred from circumstances. Permitting inference would prevent the deliberate ignorance of important facts. "Reasonably should know" applies to the prosecutor's knowledge of the legal effect of known information or evidence. 5-110(D) also limits disclosure obligations to the defense but not also to the tribunal.

Comment 3 clarifies that disclosure obligations under 5-110(D) include exculpatory and impeachment material relevant to guilt or punishment, but is not limited to the standard of materiality set forth in Brady v. Maryland, 373 U.S. 83 (1963). The comment also states that 5-110(D) is not meant to impose timing requirements different than under existing law. There is no counterpart to Comment 3 in Model Rule 3.8.

Proposed Rule 5-110(D) engendered the lion's share of debate over the new rules from the beginning. The debate ultimately centered largely over the scope 5-110(D)'s disclosure obligation. Should it be limited to the obligation that the prosecutor comply with all statutory and constitutional obligations as interpreted by case law to define what evidence "tends to negate the guilt" or "mitigates the offence," as argued by opponents to the proposed rule? Without such a tether, opponents argue, prosecutors are left to speculate as to their obligations, and open to the ethics rule unfairly being used as a litigation weapon.

On the other hand, proponents argue that taking the road requested by opponents leaves prosecutors with substantial discretion to determine materiality, and then to withhold evidence based on that decision, when such determination is best left for defense counsel to make on behalf of the accused. They argue that only a straight disclosure obligation would adequately protect that right. Proponents finally argued it was time for California to join every other state that operates under a version of Model Rule 3.8.

As approved, Proposed Rule 5-110 follows Model Rule 3.8's "tends to" exculpate standard, as opposed to a materiality standard. (All 49 other jurisdictions have adopted Model Rule 3.8's express "tends to" exculpate the accused standard to trigger a prosecutor's duty to reveal exculpatory evidence, as compared with a materiality standard.)

Proposed Rule 5-220 simply adds a reference to new proposed Rule 5-110 in its discussion, and otherwise remains unchanged from current Rule 5-220.

Drafts of proposed Rules 5-110 and 5-220 have been on an expedited track, going through an initial 90-day public comment period, revisions, and an additional 45-day public comment period prior to the recent adoption by the board. The board also resolved for Proposed Rules 5-110 and 5-220 to continue to proceed on a prioritized and individual track, untied to the remainder of the proposed Rules of Professional Conduct (which have recently completed a 90-day public comment period and remain under commission consideration). Proposed Rules 5-110 and 5-220 will not become operative unless and until approved by the California Supreme Court (Business and Professions Code Section 6077).

The views expressed herein are the author's own.


Ben Armistead

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