Rule 3.8 Special Responsibilities of a Prosecutor.

Comment

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. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Although Alabama has not adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, many jurisdictions have, and the ABA Standards, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense, should be reviewed and used in interpreting the requirements of Rule 3.8, except, of course, when Rule 3.8 would obviously conflict with the ABA Standards of Criminal Justice Relating to the Prosecution Function. Applicable law may require other measures by the prosecutor, and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

Paragraph (1)(c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an accused who has knowingly waived the rights to counsel and silence.

Paragraph (1)(d) imposes an ethical responsibility that ordinarily already exists. The disciplinary standard is limited to a willful failure to make the required disclosures. The exception in paragraph (1)(d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

Paragraph (2) deals with situations in which the ethical obligation of the prosecutor as lawyer might prevent the government from taking action that would not otherwise be prohibited by any law. For example, in undercover and sting operations, the making of false statements is the essence of the activity. The prosecutor is prohibited by Rule 4.1(a) from making false statements and is prohibited by Rule 8.4(a) from knowingly assisting or inducing another to violate the Rules. In order to make clear that the prosecutor may cause the government to act in the fight against crime to the fullest extent permitted to the government by existing law, paragraph (2)(a) makes clear that the prosecutor may order, direct, encourage and advise with respect to any lawful governmental action. However, where lawyers generally are prohibited by the Rules from taking an action, the prosecutor is likewise prohibited from personally violating the Rules. In such situations, the prosecutor's actions, as distinct from those of other governmental entities, are limited so as to preserve the integrity of the profession of law.

Paragraph (2) is applicable only to lawyers acting as prosecutors. It is designed to accommodate the prosecutor's special responsibility in governmental lawenforcement activities and is not applicable otherwise.

Comparison with Former Alabama Code of Professional Responsibility

Rule 3.8 has no counterpart in the prior Alabama Code of Professional Responsibility; however, ABA Model DR 7-103(A) provided that a “public prosecutor... shall not institute... criminal charges when he knows or it is obvious that the charges are not supported by probable cause.” DR 7-103(B) provides that “[a] public prosecutor... shall make timely disclosure... of the existence of evidence, known to the prosecutor... that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”