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Perhaps the toughest job with the toughest questions: Professional responsibility and criminal prosecutors

by Dennis A. Rendleman, former ABA Ethics Counsel and current Springfield, Illinois, lawyer

ABA Model Rules of Professional Conduct Rule 3.8 addresses “Special Responsibilities of Prosecutors” and the ABA Criminal Justice Standards provide detailed recommendations for performing the “Prosecution Functions.” 

But possibly more than any other practice area, a prosecutor is responsible to more than just a single client. While Model Rule 1.2(a) directs lawyers to be compliant to the client’s wishes, it does not address the question of when the client is as amorphous as the prosecutor’s client–“the public.”  Moreover, that “public” is often the electorate.

Rule 3.8 Comment [1] attempts to address this conflict saying, in pertinent part:

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, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

Comment [1] also references the Criminal Justice Standards just as the Prosecutor Function Standard 3-1.1(b) cross-references the Model Rules and explicitly states that the Model Rules and the Prosecutor Functions are intended to be consistent. And, as with the Model Rules, the Prosecutor Function Standards are available for formal adoption by jurisdictions. But while the Model Rules are intended to set a behavioral standard below which no lawyer’s conduct will fall, the Prosecutor Functions Standards are aspirational.

It is in this gray area where conundrums for prosecutors and the public arise. A term used primarily in the interface between law and technology–“law lag”–may be equally applicable here:

A term that has been floating around the legal industry for a while is the ‘law lag,’ the belief that the law and the practitioners in the industry are always falling years behind other industries. Rules and regulations are notoriously slow to change, however, with the speed at which technology is developing, it is time for those involved in the legal sector to face the problems arising from its failure to keep up.

Ethics issues seem to arise faster than Model Rules and opinions can provide answers. Most recently, ABA Formal Opinion 486 addressed “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses.”

A broader example of ethical conflict has been in the area of innocence exonerations. The Innocence Project recently noted:

As of September 2019, we have documented 365 DNA exoneration cases in the United States, including 20 death penalty cases. Although the individuals involved in these cases were innocent of the crime, approximately 25% had confessed or admitted guilt and 11% had plead guilty. The exonerees spent an average of 14 years in prison, with 10% serving 25 or more years.

Moreover, National Registry of Exonerations calculates that a total of 2,529 exonerations have been granted since 1989. 

In the last century, a scholarly article noted the conflict within prosecutors’ obligations.

It is on this realization that the criminal justice system is far less perfect than traditionally believed that prompted Rule 3.8(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.

And since what is widely considered to be the first DNA exoneration–Gary Dotson – it has become much more difficult for prosecutors to refuse or deny DNA results that show an individual could not have committed the crime. Indeed, the trend has shifted to the positive development of Conviction Integrity Units within prosecutors’ offices. Some of these units have posted exonerations of a disquieting size, such as Harris County, Texas (144), and Cook County, Illinois (94).

Increasing research is demonstrating that, beyond DNA, there are other practices that result in wrongful prosecutions and convictions that may violate both the existing ABA Model Rules or may require further amendment of Rule 3.8. Consensus is increasing on the lack of reliability of confessions. It is no longer an article of faith that an innocent person would never falsely confess.   

More recently, the issue of jailhouse snitches has gained attention. ProPublica has documented the wrongful convictions that have resulted from testimony by jailhouse snitches

Jailhouse snitches’–or for that matter, any witness’–testimony in a criminal prosecution is governed by ABA Model Rule 3.3: Candor Toward the Tribunal. Specifically, Rule 3.3(a)(3) provides some direction–“A lawyer shall not: … offer evidence that the lawyer knows to be false.” 

But Rule 3.3 Comments [8] and [9] raise some questions regarding the applicability of the rule when the lawyer is a prosecutor. Notably, Comment [8] states in part: “A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances.” 

The comment flows from Model Rule 1.0(f): “ ‘Knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.”

The growing collection of false jailhouse snitch testimony and multiple cases involving the same jailhouse snitch is exemplary. The criminal justice system seems to “incentivize” the practice for both the prosecutor and the jailhouse “witness.”

Moreover, the ethical conflict confronting prosecutors and jailhouse snitches is not a new discussion.  Several states, including Illinois, have adopted laws that restrict or otherwise regulate jailhouse snitch testimony.

Given the evidence that jailhouse snitch testimony is extremely unreliable, it may be that amendment to either the text or the comments of Model Rule 3.8 is necessary to clarify the special responsibilities of a prosecutor. 

But would an amendment to Rule 3.8 be effective?

It is interesting to note Rule 3.8(d) requires that a prosecutor shall: 

make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

There has been debate as to whether this rule requires a prosecutor to disclose “more” than is required by Brady v. Maryland, 373 U.S. 83 (1963). ABA Formal Opinion 09-454 (2009) concluded, in part, that: 

This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation

While the majority of states concur with the concept stated in Formal Opinion 09-454, there are a substantial minority of states that have concluded that Rule 3.8(d) is synonymous with Brady.

Does this mean that a Model Rule addressing jailhouse snitches would not control the conduct of prosecutors in presenting testimony from this questionable source? Interestingly, it has been suggested that criminal defense lawyers could file a motion in a criminal case for a court order to enforce Rule 3.8(d).

A unique approach, but difficult to imagine–particularly when the Scope statement to the Model Rules includes a limitation that “[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” 

It does seem clear that the use of jailhouse snitch testimony–particularly absent other credible evidence–as a basis for conviction raises serious ethical questions.

ABA Center for Professional Responsibility is a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.