Rule Text
The prosecutor in a criminal case shall:
(a) refrain from prosecuting 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, such as the right to a preliminary hearing;
(d) 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; and
(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent 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 3.6 or this Rule.
(f) When a prosecutor knows of new, credible and material evidence 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 authority or court, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the court and the defendant unless a court authorizes a delay
(ii) 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, and
(g) 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.
Amendment history: Amended April 11, 2006, effective July 1, 2006; amended August 5, 2014, effective October 6, 2014; amended February 6, 2024, effective April 15, 2024. Prosecutorial misconduct. — A prosecutor acted in a manner inconsistent with his ethical obligation to further the ends of justice where, although the prosecutor provided the notice of other bad acts evidence requested by the defense, and the defense filed a pretrial motion in limine, the district court did not consider the admissibility of evidence concerning the incident at issue until after the jury had been impaneled and the parties had given their opening statements and, as a consequence, the prosecutor was able to preview that evidence for the jury before the court made a detailed determination of admissibility. Capshaw v. State, 11 P.3d 905, 2000 Wyo. LEXIS 197 (Wyo. 2000). Special responsibilities of prosecutors. — In an action in which a defendant appealed from his convictions of two counts of felony conversion of grain in violation of Wyo. Stat. Ann. § 11-11-117(b) (2003) and one count of felony check fraud in violation of Wyo. Stat. Ann. § 6-3-702(a)(b)(iii) (2003), defendant failed to meet his burden of showing the district court abused its discretion when it denied his motion to withdraw his guilty plea on the basis that the he judge and prosecutor were biased and prejudiced where (1) no manifest injustice resulted from the prosecutor’s representation of the State despite his familial relationship with three of the victims because the prosecutor promptly and fully disclosed the relationship; (2) a judge may not be removed for cause simply on the basis that his brother was, at one time, a customer of the defendant. Reichert v. State, 2006 WY 62, 134 P.3d 268, 2006 Wyo. LEXIS 66 (Wyo. 2006). Prosecutorial ethics. — Prosecutor must explicitly stand by the terms agreed upon in the guilty plea and may not play “fast and loose” with the established terms reached between the parties in a plea agreement. Herrera v. State, 2003 WY 25, 64 P.3d 724, 2003 Wyo. LEXIS 27 (Wyo. 2003). Prosecutors must comply with specifically enumerated ethical requirements in properly fulfilling their role as prosecutors. Herrera v. State, 2003 WY 25, 64 P.3d 724, 2003 Wyo. LEXIS 27 (Wyo. 2003). Counseling law enforcement personnel. — Given a deputy sheriff’s testimony that the prosecutor’s office helped plan daily investigations, the court reasonably inferred, for purposes of Wyo. R. Prof. Conduct 3.8(b), that the planning included plans for the anticipated interview of the accused in the case at hand. Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003), reh’g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003), cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003). Sanctions. — A violation of Wyo. R. Prof. Conduct 3.8(b), concerning interviews with accused persons, does not require a holding that a defendant’s statement is inadmissible. Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003), reh’g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003), cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003).
Committee Notes
[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, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards for Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. 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. [2] Rule 3.8(b) is not intended to prohibit prosecutors from participating directly or indirectly in constitutionally permissible investigative actions. Therefore, for purposes of the Rule, “the accused” means a person who has been arrested and brought before a magistrate, or a person against whom adversarial judicial criminal proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. In addition, a prosecutor may ethically advise law enforcement officers regarding the full range of constitutionally permissible investigative actions, including lawful contacts with a suspect, target, or defendant. [3] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence. [4] The exception in paragraph (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. [5] Section (e) does not create an affirmative duty on the part of the prosecutor to exercise supervisory control over other agencies. [6] Paragraph (e) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c). [7] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (e) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph
(e) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals. [8] When a prosecutor knows of new, credible and material evidence a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (f) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (f) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. [9] Under paragraph (g), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted. [10] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (f) and (g), though subsequently determined to have been erroneous, does not constitute a violation of this Rule. Definitional Cross-References “Known” and “Knows” See Rule 1.0(g) “Reasonable” See Rule 1.0(i) “Reasonably believes” See Rule 1.0(j) “Substantial” See Rule 1.0(m) “Tribunal” See Rule 1.0(n)
