CHAPTER 6 - 6-1 LAWYERS AS CRIMINAL PROSECUTORS

• Jurisdiction: United States

6-1 Lawyers as Criminal Prosecutors

Prosecutors are subject to attorney discipline for their official actions.¹ Rule 3.8 is a special rule applicable only to prosecutors. There is no other rule in the lawyer ethics regime directed to a specific area of practice. The modern rule is drawn from EC 7-13 of the Code of Professional Responsibility.² Apart from ethical jeopardy, prosecutors enjoy absolute judicial immunity from any other claims arising out of their duties.³

Prosecutors are required to exercise "a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly" with their prosecutorial responsibilities.⁴ "(P)rosecutors do not have a traditional attorney-client relationship with the entity that they represent, namely, the state, because they are not required to give the state their undivided allegiance at the expense of the defendants whom they prosecute."⁵ Nevertheless, it has been held that cases brought on behalf of the state should be conducted with "a dignity worthy of the client."⁶

The functions of a prosecutor are not purely those of an executive officer.⁷ They are "ministers of justice."⁸ Prosecutorial misconduct claims (also referred to as "prosecutorial impropriety" claims)⁹ are so common in criminal appeals and habeas matters that one court described them as the equivalent of unfair trade practice claims, "seemingly attached to every criminal appeal" whether or not they have any merit.¹⁰ When analyzing such claims on appeal, the court examines the fairness of the trial as well as the culpability of the prosecutor.¹¹ The focus of appellate inquiry in such cases is both to discipline prosecutors where reprehensible conduct is present and to assure ultimate fairness to the defendant.¹² Serious prosecutorial misconduct may so pollute a trial as to require a reversal.¹³

While Connecticut prosecutors were traditionally part of the court system, and, thus, clearly subject to attorney discipline, concerns related to conflicts of interest inherent in a system where both the prosecutorial and adjudicatory functions were found in the same branch of government led to them being moved to the executive branch by statute and constitutional amendment.¹⁴ The Connecticut Supreme Court has held that there is no constitutional infirmity in the present system whereby the judicial branch continues to exercise supervision over prosecutors even though they are executive branch employees.¹⁵ Indeed, Connecticut has a long history wherein courts have treated prosecutorial misconduct as both grounds for reversal of a conviction on appeal as well as the basis for imposing attorney discipline.¹⁶

Rule 3.8 requires that prosecutors (1) refrain from prosecuting a charge not supported by probable cause, (2) make reasonable efforts to assure that the accused has been advised of his rights to and the procedure for obtaining counsel and has been given a reasonable opportunity to do so, (3) not seek to obtain from an unrepresented accused a waiver of important pretrial rights such as the right to a preliminary hearing, (4) make timely disclosure of exculpatory evidence and mitigating information, (5) exercise reasonable to prevent investigators or others involved in the prosecution from making extra-judicial statements that would be prohibited by Rule 3.6, and (6) disclose evidence creating a reasonable probability that a convicted defendant did not commit an offense for which the defendant was convicted.¹⁷ With regard to sentencing, the prosecutor must disclose all unprivileged mitigating information.¹⁸ A prosecutor must also take reasonable care to assure that personnel assisting the prosecution of the case do not make impermissible extra-judicial statements.¹⁹

Courts have not found the requirements of Rule 3.8 as to impose conduct standards for prosecutors beyond those found in extant criminal law. Thus, though Rule 3.8(4) arguably imposes disclosure duties beyond those of Brady v. Maryland,²⁰ courts have declined to superimpose this rule on prosecutors' disclosure duties in criminal cases.²¹

Connecticut has not adopted the full model rule 3.8. Thus, though the model rule 3.8(f) establishes standards for prosecutorial conduct related to the issuance of subpoenas to attorneys in grand jury proceedings, the Connecticut rule does not.²² This may reflect the fact that Connecticut does not have a grand jury regime as part of criminal prosecution. Where many states institute criminal matters by indictment, Connecticut practice is by information. Thus, perhaps, the drafters of the rule felt that the limited extent and degree of grand jury practice did not warrant a special ethics rule in this regard.

In addition to the prohibitions of Rule 3.8, courts have applied other rules of conduct to prosecutors. Rule...