The special responsibilities of the prosecutor: protecting, the accused's right to counsel, interaction with the unrepresented defendant, and subpoenaing, the defense counsel.

• Author: Sinha, Hans P.

THIS IS THE THIRD OF A SERIES Of articles discussing the special ethical and professional rules that govern the role of the prosecutor. In particular, this series of articles has focused upon the eight paragraphs of Rule 3.8--The Special Responsibilities of a Prosecutor of the Model Rules of Professional Conduct. The first article appeared in October 2007 and examined Rule 3.8(a) (1) and the area where the prosecutor's discretion is arguable at its greatest: her screening and charging power. The second article appeared in February 2008 and delved into one of the most contentious areas of the role of the prosecutor: her duty to disclose exculpatory material to the defense pursuant to rule 3.8(d). (2) Having examined the charging decision and the requirement to turn over exculpatory material, we turn now to 3.8(b)--the prosecutor's responsibility to ensure that the accused's right to counsel has been fulfilled, and 3.8(c)--the prohibition on a prosecutor to seek to obtain a waiver of important pretrial rights from the accused. The article closes with a look at 3.8(e)--the rule governing a prosecutor's use of the grand jury in subpoenaing a lawyer. As with the previous articles, the focus is on the Model Rule language and individual state deviations from the Model Rule, the thinking being that there is a benefit to all prosecutors to know not only what their particular state rule holds, but also how it differs from the Model Rule and how other states have addressed the same issue.

Although paragraphs (b), (c) and (e) may not seem as crucial to a prosecutor as paragraphs (a)--charging, and (d)--exculpatory material, considering that they, like all paragraphs of Rule 3.8 fall under the Rule's mandatory "shall" imperative, a prosecutor needs to be aware of duties that arise under these sections of the Rule as well. And, unlike the rules governing charging and the disclosure of exculpatory material, areas that prosecutors instinctively know what the right course of action is--do not charge unless you at a minimum have probable cause and err on the side of disclosure in turning over exculpatory material--the positive and mandatory duties imposed upon a prosecutor in relation to a defendant's right to counsel under Rule 3.8(b) are not as obvious. Similarly, the prohibitions imposed by 3.8(c) and (e) are well worth reviewing if for no other reason than that erring in these subjects, as in all areas governed by Rule 3.8, may result in ethical charges being brought against a prosecutor.

The fourth and final article in this series will appear in the next issue of The Prosecutor. That article discusses the remaining sections of Rule 3.8 beginning with 3.8(f)--what a prosecutor may and may not say in statements outside of court. This is an issue that arises on a daily basis across the nation. While the prosecutor as a public official and the chief law enforcement officer in her jurisdiction has a duty to keep the public informed, doing so in an improper way may not only open up the prosecutor to ethical charges, but also to having her shield of prosecutorial immunity stripped away in a subsequent civil proceeding.

The final issue to be addressed is the prosecutor's duty to take action in the realm of wrongful convictions. While the requirement that a prosecutor seek to remedy wrongful convictions has always been part of a prosecutor's overarching duty as a Minister of Justice, (3) the American Bar Association has sought to codify these duties in Rule 3.8. Thus 3.8(g) and 3.8(h) spell out what these duties, as envisioned by the ABA, are. Although sections (g) and (h) have only been adopted by three states as of now, considering the current public perception of a prevalence of wrongful convictions, and the fact these sections will likely soon be incorporated in most states' version of Rule 3.8, it behooves all prosecutors to know what the Model Rule mandates in this regard.

Although the fourth article will be the final article of this series on Rule 3.8, no look at a prosecutor's ethical and professional duties is complete without a discussion of prosecutorial immunity. The two issues are inexplicably linked, with the Supreme Court noting that it is precisely because prosecutors make themselves amenable to professional discipline under Rule 3.8 that we as a society are willing to grant them this extraordinary personal protection. (4) Although the Supreme Court has held the line on this vital protection of the American prosecutor system, it would be naive to think that the battle is over in this regard. Thus, an article examining the historical context and current extent of prosecutorial immunity will follow the final article on Rule 3.8.

RULE 3.8(B)--THE PROSECUTOR'S DUTY TO PROTECT THE ACCUSED'S RIGHT TO COUNSEL

Model Rule 3.8(b) mandates that a prosecutor shall "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." (5) Thirty-seven states have adopted the Model Rule version of section (b) in its entirety, reflecting a manifest recognition of the importance of an accused's Sixth Amendment right to counsel and the prosecutor's duty to ensure such rights are upheld. The states which have adopted the Model Rule language in this regard are: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Washington and West Virginia. (6) California has also adopted the Model Rule language in its proposed but not yet enacted rule. (7) As noted below, the Model Rule does not discuss section (b) in the comments. Out of the Model Rule states, (and counting California in this category), two states--California and Michigan, do provide some additional guidance in their comments. Five states--Georgia, Texas, Virginia, Wisconsin and Wyoming have adopted versions different from the Model Rule. None of these states differ in substance from the Model Rule. Rather, as is often the case with jurisdictions that have decided to go it their own way, they instead provide some additional guidance to their prosecutors. And, in doing so, they also help illuminate to an extent the overall purpose of the Model Rule. Finally seven jurisdictions--the District of Columbia, Florida, Hawaii, Maine, New York, Ohio and Oregon have not adopted the equivalent of the Model Rule duty for prosecutors to ensure that an accused's Sixth Amendment right to counsel is protected.

REASONABLE EFFORT

The comments to the Model Rule do not include a discussion further illuminating the meaning of section (b). The positive mandate for prosecutors to make reasonable efforts to ensure that the accused has been informed of the right, procedure for obtaining counsel, and as given a reasonable opportunity to exercise these rights, thus joins the imperative in section (a) that a prosecutor must refrain from prosecuting a charge she knows is not supported by probable cause as the only parts of Rule 3.8 that are not further clarified in the comments. Presumably the ABA believed that the wording in section (b) was clear--that a prosecutor must make reasonable efforts to assure an accused's right to counsel has been fulfilled. Certainly on a large scale, this duty falls under a prosecutor's over-reaching Minister of Justice duty: No prosecutor could or would stand silently or idly by if in her jurisdiction those accused of crimes were denied their Sixth Amendment right to counsel on a systemic basis. Similarly, nor could a prosecutor laboring in a system where these rights were uniformly provided, stand silently or idly by if she observed that in a particular instance, an accused had not been advised of the right and procedure for obtaining counsel and or denied a reasonable opportunity to obtain counsel. While the former instance fails under the prosecutor overall duties as a Minister of Justice and the chief law enforcement officer in her jurisdiction, the latter would also entail the prosecutor's advocate duties: No prosecutor wants to see her conviction reversed on appeal due to something as basic as a denial of the right to counsel for the accused. If nothing else, as with any retrial, the defendant gains an advantage and the victims are re-victimized one more time in court. In this regard, section (b) merely affirms what all prosecutors know--the accused has a constitutional right to counsel, and such a right is meaningless unless the accused has been, as the rule holds, advised of both the right and the procedure for exercising it, and given a reasonable opportunity to do so. However, what section (b) also does, is to in essence transfer a responsibility that in practice lies initially with the police and subsequently with the judiciary, into an ethical mandatory positive duty on the part of the prosecutor.

While there is nothing wrong with such a rule per se--presumably the fact the large majority of jurisdictions have adopted the rule verbatim speaks to an acceptance and approval of the rule--a rule that both incorporates a reasonable (here in terms of "reasonable efforts") standard, and an imperative (here expressed in the "shall" imperative of Rule 3.8 as a whole) could presumably, if not ideally, have provided additional guidance. Possibly recognizing this, the last jurisdiction to consider adopting the Model Rules--California, has done so. Thus, the comments to the proposed California rule note that "'[r]easonable efforts' include determining, where appropriate, whether an accused has been advised of the right to, and the procedure for obtaining counsel and taking appropriate measures if this has not been done."...