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Guidelines for Prosecutors that Defense Attorneys Love

Great care and savvy must be used in appealing to a prosecutor’s ethical obligations and professional duties to dismiss a case.  Reminding a prosecutor that he or she has a higher purpose than maintaining a 99% conviction rate, like a batting average, should only be done as a last option, not a primary plea-bargaining strategy.  After all, no one appreciates being told how to do their job, especially when it is a high stress job that one may feel underpaid for at times.
In a Nutshell:  The following principals govern prosecutorial conduct and should always be considered by the prosecution without any need for a reminder from the defense.
Nonetheless, we present the following six “nuggets” that a defense attorney must use with great discretion:
  1. “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.  The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”  American Bar Association, Criminal Justice Standards for the Prosecution Function, Standard 3- 1.2(b).
  2.  “When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood 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 court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (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...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.”  American Bar Association, Model Rules of Professional Conduct, Standard 3.8(g)-(h); California Rules of Professional Conduct (F)-(G). 
    art_1383_-_torrance_courthouse.jpgTorrance Courthouse

    In California, that remedy may include moving to dismiss the case under Penal Code § 1385 when he or she determines there is insufficient evidence to support a conviction.  See, e.g., People v. Polk (1964) 61 Cal.2d 217, 229 (defendant was in jail when the crime occurred).  A judge may dismiss for legal insufficiency of the evidence.  People v. Hatch (2000) 22 Cal.4th 260, 267; People v. Salgado (2001) 88 Cal.App.4th 5.

  3. Rule 3.8 Special Responsibilities of a Prosecutor (Rule Approved by the California Supreme Court, Effective June 1, 2020):  Prosecutors should investigate whether there is a reasonable probability that the applicant is actually innocent, despite the petitioner’s ability or inability to articulate a legally sound claim.
  4. Threatening a witness, recanting or otherwise, with prosecution for perjury, either directly or indirectly, is witness intimidation and prosecutorial misconduct under California law. People v. Bryant (1984) 157 Cal.App.3d 582.
  5. In considering evidence that may have been improperly admitted or excluded, a judge may find such error harmless (because there was other, much stronger evidence that showed the same thing or rebutted the relevance of such evidence).  However, the analysis should not stop with this.  It is important to recognize a broader perspective, best articulated as “[A]ny prejudice flowing from the error or errors earlier ruled to be harmless, must be considered along with the prejudice arising from the additional error identified in the petition, in determining whether the errors, combined, can together sustain a cumulative error claim." In re Reno (2012) 55 Cal.4th 428, 483.
  6. When prior bad act evidence is an issue, or is being considered, although defendant was not convicted of any crime:  “Absent conviction of a crime, one is presumed innocent.” Nelson v. Colorado. (2017) 137 U.S. 1249, 1255 (explaining that once a criminal conviction is erased, the presumption of innocence is restored and holding that the state “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions”), citing Johnson v. Mississippi (1988) 486 U. S. 578, 585 (1988) (holding that after a “conviction has been reversed, unless and until [the defendant] should be retried, he must be presumed innocent of that charge”); Coffin v. United States (1895) 156 U. S. 432, 453 [“axiomatic and elementary,” the presumption of innocence “lies at the foundation of our criminal law.”]
For more information about prosecutorial misconduct, please click on the following articles:
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