Prosecutorial Investigations is the subject of a new set of ABA Criminal Justice Standards approved by the ABA House of Delegates in February 2008. To go directly to individual "black letter" standards, click on the applicable link in the Table of Contents, below. The “black letter” Standards and accompanying commentary have been published in “ABA Standards for Criminal Justice: Prosecutorial Investigations,” Third Edition © 2014, American Bar Association. For a pdf version of the publication, Click Here.
TABLE OF CONTENTS
STANDARD 1.1 The Function of These Standards
STANDARD 1.2 General Principles
STANDARD 1.3 Working With Police and Other Law Enforcement Agents
STANDARD 1.4 Victims, Potential Witnesses, and Targets During the Investigative Process
STANDARD 1.5 Contacts with the Public During the Investigative Process
STANDARD 2.1 The Decision to Initiate or to Continue an Investigation
STANDARD 2.2 Selecting Investigative Techniques
STANDARD 2.3 Use of Undercover Law Enforcement Agents and Undercover Operations
STANDARD 2.4 Use of Confidential Informants
STANDARD 2.5 Cooperation Agreements and Cooperating Individuals and Organizational Witnesses
STANDARD 2.6 The Decision to Arrest During a Continuing Criminal Investigation
STANDARD 2.7 Use of Subpoenas
STANDARD 2.8 Search Warrants
STANDARD 2.9 Use of the Investigative Powers of the Grand Jury
STANDARD 2.10 Technologically-Assisted Physical Surveillance
STANDARD 2.11 Consensual Interception, Transmission and Recording of Communications
STANDARD 2.12 Non-Consensual Electronic Surveillance
STANDARD 2.13 Conducting Parallel Civil and Criminal Investigations
STANDARD 2.14 Terminating the Investigation, Retention of Evidence and Post- Investigation Analysis
STANDARD 2.15 Guidance and Training for Line Prosecutors
STANDARD 2.16 Special Prosecutors, Independent Counsel and Special Prosecution Units
STANDARD 2.17 Use of Information, Money, or Resources Provided by Non- Governmental Sources
STANDARD 2.18 Use of Sensitive, Classified or Other Information Implicating Investigative Privileges
PART 3: PROSECUTOR’S ROLE IN RESOLVING INVESTIGATION PROBLEMS
STANDARD 3.1 Prosecutor’s Role in Addressing Suspected Law Enforcement Misconduct
STANDARD 3.2 Prosecutor’s Role in Addressing Suspected Judicial Misconduct
STANDARD 3.3 Prosecutor’s Role in Addressing Suspected Misconduct by Defense Counsel
STANDARD 3.4 Prosecutor’s Role in Addressing Suspected Misconduct by Witnesses, Informants or Jurors
STANDARD 3.5 Illegally Obtained Evidence
STANDARD 3.6Responding to Political Pressure and Consideration of the Impact of Criminal Investigations on the Political Process
STANDARD 3.7 Review and Oversight of Criminal Investigations by Government Agencies and Officials
Standards on Prosecutorial Investigations (Text)
ABA Standards for Criminal Justice: Prosecutorial Investigations
Approved February 2008
A prosecutor's investigative role, responsibilities and potential liability are different from the prosecutor's role and responsibilities as a courtroom advocate. These Standards are intended as a guide to conduct for a prosecutor actively engaged in a criminal investigation or performing a legally mandated investigative responsibility, e.g., serving as legal advisor to an investigative grand jury or as an applicant for a warrant to intercept communications. These Standards are intended to supplement the Prosecution Function Standards, not to supplant them. These Standards may not be applicable to a prosecutor serving in a minor supporting role to an investigation undertaken and directed by law enforcement agents.
(a) These Standards address the investigative stage of the criminal justice process. They address the charge or post-charge stages of the criminal justice process only when those stages overlap with the investigative stage.
(b) Standards are not intended to serve as the basis for the imposition of professional discipline, nor to create substantive or procedural rights for accused or convicted persons. These Standards do not modify a prosecutor’s ethical obligations under applicable rule of professional conduct. These Standards are not intended to create a standard of care for civil liability, nor to serve as a predicate for a motion to suppress evidence or dismiss a charge.
(i) develop sufficient factual information to enable the prosecutor to make a fair and objective determination of whether and what charges should be brought and to guard against prosecution of the innocent, and
(ii) ensure that criminal investigations are not based upon partisan or other improper political or personal considerations and do not invidiously discriminate against, nor wrongly favor, persons on the basis of race, ethnicity, religion, gender, sexual orientation, political beliefs, age, or social or economic status;
(g) The prosecutor should cooperate with other governmental authorities regarding matters that are of legitimate concern to such authorities when doing so is permitted by law and would not compromise an investigation or other criminal justice goals.
(e) Before and throughout the course of complex or non-routine investigations, the prosecutor should work with the police and other participating agencies and experts to develop an investigative plan that analyzes:
(g) The prosecutor should not seek to circumvent ethical rules by instructing or recommending that others use means that the prosecutor is ethically prohibited from using. The prosecutor may provide legal advice to law enforcement agents regarding the use of investigative techniques that law enforcement agents are authorized to use.
(a) Throughout the course of the investigation as new information emerges, the prosecutor should reevaluate:
(i) judgments or beliefs as to the culpability or status of persons or entities identified as “witnesses,” “victims,” “subjects” and “targets,” and recognize that the status of such persons or entities may change; and
(b) Upon request and if known, the prosecutor should inform a person or the person’s counsel, whether the person is considered to be a target, subject, witness or victim, including whether their status has changed, unless doing so would compromise a continuing investigation.
(d) Absent a law or court order to the contrary, the prosecutor should not imply or state that it is unlawful for potential witnesses to disclose information related to or discovered during an investigation. The prosecutor may ask potential witnesses not to disclose information, and in doing so, the prosecutor may explain to them the adverse consequences that might result from disclosure (such as compromising the investigation or endangering others). The prosecutor also may alert an individual who has entered into a cooperation agreement that certain disclosures might result in violation of the agreement.
(g) The prosecutor should not take into consideration any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation unless the specified conduct of the organization would constitute a violation of law or court order:
(h) The prosecutor should not interfere with, threaten, or seek to punish persons or entities seeking counsel in connection with an investigation, nor should the prosecutor interfere with, threaten or seek to punish those who provide such counsel unless by doing so such conduct would constitute a violation of law or court order. A good faith basis for raising a conflict of interest, or for investigating possible criminal conduct by the defense attorney, is not “interference” within the meaning of this Standard.
(a) The prosecutor should neither confirm nor deny the existence of an investigation, or reveal the status of the investigation, nor release information concerning the investigation, with the following exceptions:
(iii) responding to a law enforcement or regulatory matter of significant public safety concern, by stating that the prosecutor will begin an investigation or begin a special initiative to address the issue, or by releasing information reasonably necessary to protect public safety, subject to restrictions in the law of the jurisdiction;
(v) stating in an already publicized matter and where justice so requires, that the prosecutor will not initiate, will not continue, or has concluded an investigation of a person, entity, or matter and, if applicable, has informed the subject or potential subject of the decision not to file charges;
(viii) offering limited comment when public attention is generated by an event in the investigation (e.g., arrests, the execution of search warrants, the filing of charges, or convictions), subject to governing legal standards and court rules; and
(b) Except as a proper part of a court proceeding and in accordance with applicable rules, the prosecutor should not publicly make the following types of statements or publicly disclose the following information about an investigation:
(c) The prosecutor should endeavor to dissuade police and other law enforcement agents and law enforcement personnel from making public information that the prosecutor would be prohibited from making public, or that may have an adverse impact on the investigation or any potential prosecution.
(a) The prosecutor should have wide discretion to select matters for investigation. Thus, unless required by statute or policy:
(vi) whether the costs and benefits of the investigation and of particular investigative tools and techniques are justified in consideration of, among other things, the nature of the criminal activity as well as the impact of conducting the investigation on other enforcement priorities and resources
(viii) the probability of obtaining sufficient evidence for a successful prosecution of the matter in question, including, if there is a trial, the probability of obtaining a conviction and having the conviction upheld upon appellate review; and
(i) partisan or other improper political or personal considerations, or by the race, ethnicity, religion, gender, sexual orientation, political beliefs or affiliations, age, or social or economic status of the potential subject or victim, unless they are elements of the crime or are relevant to the motive of the perpetrator; or
(b) The prosecutor should consider the use of costlier, riskier, or more intrusive means of investigation only if routine investigative techniques would be inappropriate, ineffective, or dangerous, or if their use would impair the ability to take other desirable investigative steps. If non-routine techniques are used, the prosecutor should regularly reevaluate the need for them and whether the use of routine investigative techniques will suffice.
(e) The prosecutor may consider that the use of certain investigative techniques could cause the subject of the investigation to retain legal counsel and thereby limit the use of some otherwise permissible investigative techniques.
(g) While the prosecutor may, and sometimes should, seek changes in law and policy, the prosecutor should abide by existing legal restraints, even if the prosecutor believes that they unjustifiably inhibit the effective investigation of criminal conduct.
(a) For the purpose of these Standards, an “undercover law enforcement agent” is an employee of a government agency working under the direction and control of a government agency in a criminal investigation, whose true identity as a law enforcement agent involved in the investigation is concealed from third parties.
(b) For the purpose of these Standards, an “undercover operation” means an investigation in which undercover law enforcement agents or other persons working with law enforcement conceal their purpose of detecting crime or obtaining evidence to prosecute those engaged in illegal activities.
(x) involvement in illegal conduct by undercover law enforcement agents or government participation in activity that would be considered unsuitable and highly offensive to public values and that may adversely impact a jury’s view of a case; and
(i) consult with appropriate police or law enforcement agents on a regular basis about the continued propriety of the operation and the legal sufficiency and quality of the evidence that is being produced by the operation;
(f) The prosecutor should seek to avoid or minimize the risks involved in the active participation of undercover police or law enforcement agents in illegal activity, and provide such agents guidance about authorized participation in otherwise criminal conduct.
(a) As used in these Standards, a “confidential informant” is a person who supplies information to police or law enforcement agents pursuant to an agreement that the police or investigative agency will seek not to disclose the person’s identity. The identity of a confidential informant may also be unknown to the prosecutor. A confidential informant may in some instances become a cooperator, and in such circumstances reference should be made to Standard 2.5.
(e) Before deciding to rely upon the information provided by a confidential informant for significant investigative steps, the prosecutor should review the following with the police or law enforcement agents:
(iv) the nature of any and all promises made to the prospective confidential informant by other prosecutors, police or law enforcement agents, including promises related to the treatment of associates or relatives of the confidential informant;
(vi) whether the prospective confidential informant is represented by an attorney or is party to a joint defense agreement with other targets of the investigation and, if so, how best to address potential legal or ethical issues related to the representation or agreement;
(ix) the risk that the prospective confidential informant may be an agent of the subjects of the investigation or of other criminal groups and individuals, or may reveal investigative information to them; and
(ii) prohibitions on making promises of compensation or other benefits that would shock the conscience of a moral society or would risk compromising the credibility of the informant in any proceeding in which the informant’s testimony may be important;
(a) As used in these Standards, “cooperation agreements” are agreements between the prosecutor and otherwise culpable individuals or entities (“cooperators”) who provide the government with assistance useful to an investigation in exchange for benefits. A cooperator may have been a confidential informant earlier in the investigation.
(c) In deciding whether to offer a cooperator significant benefits, including a limit on criminal liability, immunity, or a recommendation for reduction of sentence, the prosecutor should consider whether:
(iv) leniency or immunity for the criminal activity of the cooperator is warranted by the goals of the investigation and the public interest , including appropriate consideration for victim(s) interests;
(ii) be aware of the disclosure requirements under relevant law if a cooperator ultimately testifies at trial, including disclosure of any and all agreements and promises made to the cooperator and evidence which could impact the cooperator’s credibility, including the complete criminal history of the cooperator. The prosecutor should take steps to assure the preservation of such evidence.
(g) Ordinarily, a prosecutor who offers leniency in exchange for cooperation should not withdraw or threaten to withdraw the offer because of the potential cooperator’s request to consult with counsel prior to deciding whether to accept it. However, if the time required for the potential cooperator to consult with counsel would render the agreement ineffective, the prosecutor may withdraw or threaten to withdraw the offer before there is opportunity for such consultation. In that event, the prosecutor may condition cooperation on an immediate and uncounseled decision to proceed.
(h) The prosecutor should reduce a cooperation agreement to writing as soon as practicable. An agreement should only cover those crimes known to the government at the time it is made, and should specify:
(k) Prior to relying on the cooperator’s information in undertaking an investigative step that could cause adverse consequences to the investigation or to a third party, the prosecutor should be satisfied as to the truthfulness of the cooperator.
(l) If an investigative step involves an application to a court or other official body, the prosecutor should make appropriate and required disclosures about the cooperator to the court or other body.
(m) If the prosecutor suspects that the cooperator is not being truthful, the prosecutor should take reasonable steps to address such concerns and seek further corroboration of the cooperator’s information.
(a) As used in these Standards, a “subpoena,” however named or designated, is a written command for a person or entity to provide physical evidence, testimony or documents. A subpoena may be issued by a prosecutor, a court, a grand jury or a law enforcement agency, as provided by the law of the jurisdiction.
(iv) the ability to delay or prevent a third party from voluntarily or compulsorily disclosing information about the subpoena (including the disclosure of either the fact of the subpoena itself or of any information provided in response) as a means to preserve the secrecy of the investigation if authorized by law; and
(ii) provide reasonable accommodations based on factors such as the size or nature of the request, the impact of the request on legitimate business operations, or the time reasonably needed to perform a review for privileged or other legally protected fact information, unless doing so would be outweighed by the government’s interest in avoiding delay.
(f) The prosecutor should accept copies of documents subject to a subpoena unless there is a specific need for original documents that outweighs the producing party’s need and right to retain its original materials.
(h) The prosecutor should seek to minimize the cost and dislocation suffered by a person or entity to whom a subpoena is issued and, where applicable, should inform the person or entity of any right to compensation allowed by law.
(j) The prosecutor involved in an investigation where police or law enforcement agents have legal authority to issue written requests for various records and data without probable cause or judicial oversight, should provide advice as to whether the proposed use of such authority is consistent with the limits of the applicable law, the Constitution, and the circumstances of the investigation.
(a) As used in these Standards a “search warrant” is a written command issued by a judge or magistrate that permits law enforcement agents to search specified persons or premises and seize specified effects and information.
(d) When the prosecutor is involved in an investigation, the prosecutor should review search warrant applications prior to their submission to a judicial officer. In all other cases, the prosecutor should encourage police and law enforcement agents to seek prosecutorial review and approval of search warrants prior to their submission to a judicial officer.
(e) In jurisdictions that authorize telephonic warrants, the prosecutor should be familiar with the rules governing the use of such warrants and should be available to confer with law enforcement agents about them.
(i) generally, if time permits, meet in advance with all law enforcement and other personnel who will participate in the execution of the warrant to explain the scope of the warrant, including the area(s) to be searched and the items to be seized;
(iii) avoid becoming a necessary percipient witness at the scene of the execution of the warrant but be readily available and accessible to respond to immediate questions or to assist in the preparation of additional warrant applications;
(h) When searching an attorney’s office, or any place where attorney-client or other privileged material is likely to be located or is discovered, the prosecutor should arrange for evidence to be recovered in such manner as to prevent or minimize any unauthorized intrusion into confidential relationships or information privileged under law.
(j) The prosecutor should consider seeking to delay notice about the execution of a search warrant if such delay is authorized by law and if prompt disclosure of the execution of the warrant could reasonably be expected to result in:
(l) The prosecutor should consider whether the papers supporting the search warrant should be sealed after the warrant is executed and should make application to do so only when the prosecutor believes that the public’s interest in knowing of the warrant is outweighed by the need to maintain secrecy of the investigation or to prevent unfair publicity to the persons or organizations whose premises were searched.
(vi) exposing grand jury witnesses to collateral consequences such as lost time from employment or family obligations, financial costs of compliance, and potential damage to their reputation from association with a criminal investigation.
(iv) pose only legal and proper questions and, if within the knowledge of the prosecutor questioning may elicit a privileged or self-incriminating response, advise the witness of the existence of the applicable privilege; and
(iv) make reasonable efforts before a witness appears at the grand jury to determine that the testimony is needed, including offering the witness or witness’ counsel a voluntary pre-appearance conference;
(iv) seek a compulsion order only when the testimony sought is in the public interest, there is no other reasonable way to elicit such testimony, and the witness has refused to testify or has indicated an intent to invoke the privilege against self- incrimination.
(h) Ordinarily, the prosecutor should give notice to a target of a grand jury investigation and offer the opportunity for the target to testify without immunity before the grand jury. However, notice need not be provided if there is a reasonable possibility it will result in flight of the target, endanger other persons, or obstruct justice. Prior to taking a target’s testimony, the prosecutor should advise the target of the privilege against self-incrimination and obtain a waiver of that right.
(i) A prosecutor with personal knowledge of non-frivolous evidence that directly negates the guilt of a subject of the investigation should present or otherwise disclose that evidence to the grand jury. If evidence is provided to the prosecutor by the subject or target of the investigation and the prosecutor decides not to provide the evidence to the grand jury, the prosecutor should notify the subject, target or their counsel of that decision without delay, so long as doing so would not jeopardize the investigation or prosecution or endanger others.
(c) In deciding whether to use technologically-assisted physical surveillance, the prosecutor should consider the legal and privacy implications for subjects, victims and third parties. The prosecutor should seek to use such surveillance techniques in proportion to the seriousness of the criminal activity being investigated and the needs of the particular investigation and in a manner designed to be minimally intrusive.
(d) In deciding whether to use technologically-assisted physical surveillance, the prosecutor should consider the legal requirements applicable to the technique under consideration, and whether those requirements have been met.
(a) As used in these Standards “consensual interception” is an electronic, digital, audio or video interception and recording of communications to which one or more but not all participants in the communications has consented.
(b) In deciding whether to use consensual interception, the prosecutor should consider the potential benefits, including obtaining direct, incriminating, and credible evidence that can be used alone or to corroborate other information.
(i) obtain written or recorded consent from the consenting individual; and minimize to the extent practicable recording outside the presence of law enforcement agents and, if such a recording occurs or will occur:
(B) minimize the necessity for the cooperating party to operate the recording equipment and, if it is necessary for the cooperating party to operate the equipment, provide that individual specific directions on how to operate the equipment and strict instruction to be present with it during such operation.
(f) The prosecutor should take steps to ensure law enforcement agents comply with procedures relating to the acquisition of, custody of, and access to electronic equipment and recording media and to the secure preservation of any recordings produced whether they are obtained by consenting individuals or by law enforcement agents.
(b) In deciding whether to request a court order for non-consensual electronic surveillance, the prosecutor should consider the potential benefit of obtaining direct, incriminating, and credible evidence that can be used alone or to corroborate other information.
(d) The prosecutor, including an applicant, should be aware of the reporting requirements under federal and state law and heightened obligations and accountability to the court in connection with the application and use of non-consensual electronic surveillance.
(e) Prior to the initiation of non-consensual electronic surveillance, the prosecutor should review the following with the law enforcement agents and contract personnel such as interpreters who will assist in the execution of the order:
(ii) obligations of the monitoring law enforcement agents and monitoring personnel to minimize the interception of privileged conversations and other conversations outside the scope of the order and to alert the prosecutor promptly when recording evidence of new crimes;
(f) The prosecutor should stay informed of actions of law enforcement agents and contract personnel throughout the use of non-consensual electronic surveillance and should take appropriate steps to determine whether the required procedures are being followed by those carrying out the surveillance.
(a) In deciding whether to conduct a criminal investigation and throughout any such investigation that is undertaken, the prosecutor should consider whether society’s interest in the matter might be better or equally vindicated by available civil, regulatory, administrative, or private remedies.
(b) When doing so would not compromise a proper prosecutorial interest, and to the degree permitted by law, the prosecutor should cooperate with other governmental authorities regarding their investigations for the purpose of instituting remedial actions that are of legitimate concern to such entities. In the course of such cooperation, the prosecutor:
(iv) may, in order to preserve the integrity of a criminal investigation or prosecution, ask a civil investigative agency to refrain from taking an investigative step or bringing an action but, in considering whether to do so, should consider the detriment to the public that may result from such forbearance.
(c) A prosecutor should consider the appropriateness of non-criminal or global (civil and criminal resolutions) dispositions suggested by subjects or targets, whether or not they choose to cooperate, and may consider proposals by them to include civil or regulatory sanctions as part of a disposition or cooperation agreement.
(c) The prosecutor should determine whether information obtained in investigations should be made available for civil enforcement purposes, administrative remedies, or for other purposes consistent with law and the public interest.
(d) To the extent feasible, the prosecutor and members of the investigative agencies should analyze investigations retrospectively, to evaluate techniques and steps that worked well or that proved to be deficient.
(f) Prosecutors should be aware of the requirements and office practices regarding the preservation of investigative records and of their compliance obligations with regard to information access and privacy law provisions.
(h) Upon termination of the investigation and related proceedings, physical evidence other than contraband should be returned promptly to the person from whom it was obtained, absent an agreement , court order or requirement of law to the contrary.
(vii) create and implement policies and procedures that protect against practices that could result in unfair hardships, the pursuit of baseless investigations, and the bringing of charges against the innocent;
(d) When a line prosecutor believes the needs of an investigation or some extraordinary circumstance require actions that are contrary to or outside of existing policies, the prosecutor should seek prior approval before taking such actions.
(e) A prosecutor’s office should develop policies and procedures that address the initiation and implementation of the investigative tools discussed in these Standards in advance of the specific needs of an investigation.
(a) As used in these Standards, a “special prosecutor” or an “independent counsel” is a prosecutor serving independently from the general prosecution office under a particularized appointment and whose service in that role typically ends after the purpose of the appointment is completed. A “special prosecution unit” is typically a unit that focuses on a particular type of crime, criminal activity, or victim.
(ii) base judgments about the merits of pursuing a particular investigation upon the same factors that should guide a regular prosecutor, including the seriousness of the offense, the harm to the public, and the expenditure of public resources; and
(iii) in choosing matters to investigate, consider the danger that the narrow focus or limited jurisdiction of the prosecutor or the unit will lead to the pursuit of what would, in a general prosecution office, be considered an insubstantial violation, or one more appropriately resolved by civil or administrative actions.
(a) The prosecutor may use information provided by non-governmental sources that is pertinent to a potential or existing criminal investigation. However, consistent with the principles in Standard 2.1, the prosecutor should make an independent evaluation of the information and make an independent decision as to whether to allocate or continue to allocate resources to investigating the matter.
(b) If the law of the jurisdiction permits the acceptance of financial or resource assistance from non-governmental sources, the decision to accept such assistance should be made with caution by the chief public prosecutor or an accountable designee after careful consideration of:
(viii) the extent to which financial or resource assistance would enhance or enable the investigation of criminal activity;
(d) The office of the prosecutor should have procedures designed to protect the independent exercise of investigative discretion from being influenced by the receipt of outside financial or resource assistance, including careful accounting and recordkeeping of the amounts and terms of such assistance and clear disclosure that providing assistance will not guide the exercise of investigative or prosecutorial discretion.
(e) The prosecutor , consistent with the law of the jurisdiction, should disclose significant non-governmental assistance to relevant legislative or public bodies having oversight over the prosecutor’s office and, when appropriate, the public.
(f) Non-governmental assistance should be disclosed to affected parties as part of the discovery process.
(a) The prosecutor should be alert to the need to balance the government’s legitimate interests in protecting certain information from disclosure, and the legitimate interests and Constitutional rights of the public and of defendants favoring disclosure.
(b) When appropriate, the prosecutor should request court orders designed to protect the disclosure of law enforcement means and methods, informant identities, observation posts, and such other information that might jeopardize future investigations or the safety or reputation of persons directly or indirectly involved in an investigation.
(c) In investigations believed to have the potential to include classified or sensitive information, prosecutors should seek to obtain the relevant information and consult laws, regulations and other requirements for handling such information before making any charging decisions.
(a) If the prosecutor has reason to suspect misconduct or unauthorized illegal activity at any level of the prosecutor’s office or in any agency or department engaged in a criminal investigation, the prosecutor should promptly report the suspicion and the reason for it to appropriate supervisory personnel in the prosecutor’s office who have authority to address the problem, or to the appropriate inspector general’s office, or similar agency, if reporting within the prosecutor’s own office is problematic. Reporting may also be required to comply with requirements of the applicable rules of professional conduct, the Model Rules and the law of the jurisdiction.
(b) If the prosecutor has reason to believe that a criminal investigation or prosecution is, or is likely to be, adversely affected by incompetence, lack of skilled personnel or inadequate resources in the prosecutor’s office or in any other relevant agency or department, the prosecutor should promptly report that belief and the reason for it to supervisory personnel in the prosecutor’s office.
(c) A supervisory prosecutor who receives an allegation of misconduct, unauthorized illegal conduct, or who receives an allegation of incompetence, inadequate resources, or lack of skilled personnel that is, or is likely to, adversely affect a criminal investigation, should undertake a prompt and objective review of the facts and circumstances or refer the matter to an appropriate agency or component responsible for addressing such allegations. When practicable, the line prosecutor making any such allegations should not be involved in subsequent investigation(s) relating to the allegation(s).
(d) If the prosecutor’s office concludes that there is a reasonable belief that personnel in any agency or department have engaged in unauthorized illegal conduct, the prosecutor’s office should initiate a criminal investigation into the conduct or seek the initiation of such an investigation by an appropriate outside agency or office.
(e) If the prosecutor’s office concludes that there was not unauthorized illegal conduct, but concludes that there was incompetence or non-criminal misconduct, the prosecutor’s office should take appropriate action to notify the relevant agency or department, and if within the prosecutor’s own office, to impose sanctions for the conduct.
(f) Decisions on how to respond to allegations of unauthorized illegal conduct, misconduct, or significant incompetence should generally be made without regard to adverse consequences on pending cases or investigations.
(a) Although judges are not exempt from criminal investigation, the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the judiciary.
(b) If a line prosecutor has reason to believe that there is significant misconduct or illegal activity by a member of the judiciary, the line prosecutor should promptly report that belief and the reasons for it to supervisory personnel in the prosecutor’s office.
(c) Upon receiving from a line prosecutor, or from any source, an allegation of significant misconduct or illegal conduct by a member of the judiciary, a supervisory prosecutor should undertake a prompt and objective review of the facts and circumstances.
(d) If the prosecutor’s office has a reasonable belief that a member of the judiciary has engaged in criminal conduct, the prosecutor’s office should initiate, or seek the initiation of, a criminal investigation.
(e) If the prosecutor’s office concludes that a member of the judiciary has not engaged in illegal conduct, but has engaged in non-criminal misconduct, the prosecutor’s office should take appropriate action to inform the relevant officer of the judicial authorities. Reporting may also be required to comply with requirements of the applicable rules of professional conduct, the Model Rules and the law of the jurisdiction.
(f) The prosecutor’s office should take reasonable steps to assure the independence of any investigation of a judge before whom the prosecutor’s office practices. In some instances, this may require the appointment of a “pro tem” or “special” prosecutor or use of a “fire-wall” within the prosecutor’s office.
(a) Although defense counsel are not exempt from criminal investigation, the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the defense counsel or the Constitutionally protected right to counsel.
(b) If a line prosecutor has reason to believe that defense counsel is engaging in criminal conduct, is violating the duty to protect a client, or is engaging in unethical behavior or misconduct, the prosecutor should promptly report that belief and the reasons for it to supervisory personnel in the prosecutor’s office.
(c) Upon receiving from a line prosecutor, or from any source, an allegation of misconduct or illegal conduct by defense counsel, a supervisory prosecutor should undertake a prompt and objective review of the facts and circumstances.
(d) If the prosecutor’s office has a reasonable belief that defense counsel has engaged in illegal conduct, the prosecutor’s office should initiate, or seek the initiation of, an investigation into the conduct.
(e) If the prosecutor’s office concludes that defense counsel has not engaged in illegal conduct, but has engaged in non-criminal misconduct as defined by the governing ethical code and the rules of the jurisdiction, the prosecutor’s office should take appropriate action to inform the appropriate disciplinary authority.
(f) The prosecutor’s office should take reasonable steps to assure the independence of any investigation of a defense counsel including, if appropriate, the appointment of a pro tem or special prosecutor or use of a “fire-wall” within the prosecutor’s office. At a minimum, an investigation of defense counsel’s conduct should be conducted by a prosecutor who has not been involved in the initial matter or in ongoing matters with that defense counsel.
(g) The prosecutor investigating defense counsel should consider whether information regarding conduct by defense counsel should be provided to a judicial officer involved in overseeing aspects of the investigation in which the misconduct occurred.
(h) The prosecutor investigating defense counsel who is representing a client in a criminal matter under the jurisdiction of the prosecutor’s office ordinarily should notify the attorney and the court in a timely manner about the possibility that potential charges against the attorney may create a conflict of interest.
(a) If a line prosecutor has reason to believe that there has been illegal conduct or non-criminal misconduct by witnesses, informants, or jurors, the prosecutor should seek supervisory review of the matter.
(b) Upon receiving an allegation of unauthorized illegal conduct or non-criminal misconduct by witnesses, informants or jurors, the prosecutor’s office should undertake a prompt and objective review. If there is a reasonable belief that there has been illegal conduct or non-criminal misconduct, the prosecutor’s office should initiate an investigation into the conduct. All relevant evidence should be preserved in the event it must be disclosed if criminal charges are filed against the individual alleged to have engaged in the conduct.
(a) If a prosecutor reasonably believes that evidence has been illegally obtained, the prosecutor should consider whether there are potential criminal acts that should be investigated or misconduct that should be addressed or reported. The prosecutor should be familiar with the laws of their jurisdiction regarding the admissibility of illegally obtained evidence.
(c) The prosecutor should notify the parties affected by the illegal conduct at the earliest time that will not compromise the investigation or subsequent investigation, or at an earlier time if required by law.
(c) When, due to the nature of the investigation or the identity of investigative targets, any decision will have some impact on the political process (such as an impending election), the prosecutor should make decisions and use discretion in a principled manner and in a manner designed to limit the political impact without regard to the prosecutor’s personal political beliefs or affiliations.
(d) The prosecutor should carefully consider the language in Standard 1.5 (“Contacts with the Public During the Investigative Process”) when making any statements or reports regarding a decision to prosecute, or to decline to prosecute, in a matter that may have some impact on the political process.
(a) Prosecutors’ offices should attempt to respond in a timely, open, and candid manner to requests from public officials for general information about the enforcement of laws under their jurisdiction or about law reform matters. However, if public officials seek information about ongoing or impending investigations, the prosecutors’ offices should consider the potential negative impact of providing such information and should inform public officials about such concerns.
(b) Generally, responses to public officials should be made by high-ranking officials in the prosecutor’s office who have policy-making authority. Prosecutors’ offices should resist allowing line-attorneys to respond to requests for information by public officials.
(c) Generally, responses to information requests by public officials should be through testimony or by providing pertinent statistics and descriptive and analytical reports, and not by providing information about particular matters. Prosecutors’ offices should resist requests for materials that are subject to deliberative process or work product privileges related to pending criminal investigations or closed investigations whose materials have not otherwise been made public, and should oppose disclosure of information that would adversely affect a person or entity.
(d) Prosecutor’s offices may respond to requests about the handling of fully adjudicated cases. Absent unusual circumstances, information about adjudicated cases should be provided by high-ranking officials with policy-making authority, and not by line attorneys.
(e) The Prosecutor’s office should establish clear and consistent policies to address its responsibilities under public disclosure laws and with regard to the public’s potential access to closed matters. The Prosecutor’s office should provide sufficient resources to make prompt and appropriate replies to any public disclosure requests.
Copyright American Bar Association.