Right To A Fair Prosecutor

• Jurisdiction: Maryland

III. Right to a fair prosecutor

A. General responsibilities of prosecutors

The prosecutor is the minister of justice and is not simply an advocate. MRPC 3.8; see Brady v. Maryland, 373 U.S. 83, 87-88 (1963). This responsibility imposes obligations on the prosecutor to ensure that the defendant is given procedural justice and that guilt is decided only on sufficient evidence. A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. MRPC 3.8(a) cmt. 1. See ABA Standards for Criminal Justice—Prosecution Function. Prosecutors must use reasonable care to ensure that attorneys and non-attorneys in the prosecutor's office, plus police personnel working with the prosecutor, comply with all rules imposed on the prosecutor.

If the defendant appears pro se, and the court determines that the defendant made a knowing and intelligent waiver of the right to counsel, the prosecutor may talk with and question the defendant. The prosecutor may seek a protective order, preventing disclosure of information that could result in substantial harm to individuals or the public.

B. Special responsibilities of prosecutors

Prosecutors are held to even higher standards of conduct than other attorneys because of their unique role as both advocate and minister of justice. The special duty of the prosecutor to seek justice exists because the State's Attorney has broad discretion in determining whether to initiate criminal proceedings. Brack v. Wells, 184 Md. 86 (1944). The office of the prosecutor is therefore "not purely ministerial, but involves the exercise of learning and discretion[, and] must exercise sound discretion to distinguish between the guilty and the innocent." Id. at 90.

The responsibilities of the prosecutor encompass more than advocacy. The prosecutor's duty is not merely to convict, but to seek justice. "His obligation is to protect not only the public interest but the innocent as well as to safeguard the rights guaranteed to all persons, including those who may be guilty." Sinclair v. State, 27 Md. App. 207, 222-23 (1975); see Walker v. State, 373 Md. 360, 394-95 (2003). In Adams v. State, 192 Md. App. 469 (2010), the Court of Special Appeals stated:

[A]lthough prosecutors (like all lawyers in this State) have a professional responsibility to comply will all applicable rules of professional conduct, and to make reasonable efforts to ensure that conduct of their employees and agents is compatible with the professional obligations of the lawyer, the Supreme Court has recognized that the violation of a state's ethical rules is not determinative of whether a right guaranteed by the Constitution has been violated.

Id. at 492 n.3 (citations and quotations omitted). In Texas v. Cobb, 532 U.S. 162 (2001), the Supreme Court noted that the Rules of Professional Conduct "are obviously not controlling in interpretation of constitutional provisions." Id. at 172 n.2.

1. Prosecutor may not prosecute without probable cause

A prosecutor must refrain from prosecuting a case that the prosecutor knows lacks probable cause. See MRPC 3.8(a).

2. Prosecutor must ensure that the trial court advises the defendant of the right to counsel and how to obtain counsel

A prosecutor should make reasonable efforts to ensure that the defendant is (a) advised of the right to counsel; (b) advised how to obtain counsel; and (c) provided reasonable opportunity to obtain counsel. MRPC 3.8(b).

3. Prosecutor may not seek a waiver of rights from an unrepresented defendant

The prosecutor should not seek a waiver of important pre-trial rights, e.g., the right to preliminary hearing, from an unrepresented defendant. MRPC 3.8(c).

4. Prosecutor must disclose information that tends to negate the guilt of the defendant

A prosecutor must

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 . . .

MRPC 3.8(d).

In Attorney Grievance Comm'n v. Cassilly, 476 Md. 309, 371 (2021), the Court of Appeals determined that MRPC 3.8(d) applies to post-conviction...