Prosecutors and Judges

Chapter 7 Special Ethical Rules

Pearce, et al.
Contemporaryprofessionalresponsibility.com
Prof. George W. Conk
Senior Fellow
Stein Center for Law & Ethics
Fordham Law School
gconk@law.fordham.edu
Ch 7 Special Ethics Rules Prosecutors and Judges

RPC 3.8 Rule 3.8 Special Responsibilities

Of A Prosecutor

Who is the client of a

prosecutor?

How does the duty of a

prosecutor differ from that of a
defender? A lawyer in a private
matter?
Ch 7 Special Ethics Rules Prosecutors and Judges

Q. 7-1, p. 660 Can the prosecutor ethically bring

charges against Bill for lying on a government form?

(A) No, because the prosecutor is acting

pretextually.
(B)No, because the prosecutor is acting
selectively.
(C)Yes, because the prosecutor has
probable cause to believe that Bill
committed the crime.
(D)Yes, because the prosecutors
discretion to charge or not to charge is an
executive decision that is not subject to
regulation by lawyers ethics rules.
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ABA Standards, The Prosecution Function,

Standard 3-3.9 Discretion in the Charging
Decision p. 641
Charges must be supported by
probable cause and sufficient
admissible evidence that could
support a conviction.
- extent of the harm caused by the
offense
- the disproportion of the authorized
punishment
- improper motives of a complainant
- cooperation of the defendant.
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Disparate penalties
Crack cocaine was a street
drug
Powdered cocaine was a
suite drug

Were crack prosecutors guilty of

racial discrimination?
Should discriminatory effect be
enough?
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Selective Prosecution

To establish a discriminatory effect

in a race case, the claimant must
show that similarly situated
individuals of a different race were
not prosecuted..and that it was
motivated by a discriminatory
purpose.

U.S. v. Armstrong (1996) p. 680

Ch 7 Special Ethics Rules Prosecutors and Judges

Respecting the right to counsel

It is the prosecutors duty to ensure

that the accused has been advised of
his right to counsel, per RPC 3.8 (b).
Are we crazy? The police advised the
underwear bomber of his right to
counsel while still on the airplane at
Detroit.
Can a prosecutor ask a reliable
informant to interview a
defendant and report back.
Ch 7 Special Ethics Rules Prosecutors and Judges

U.S. v. Hammad (2d Cir. 1988) p. 690

RPC 4.2 (formerly 7-104) bars

contact with someone one knows to
be represented by counsel.
Hammad holds that an informant
may be a prosecutors agent, and the
Rule was violated.
Should the evidence have been
suppressed?
The prosecutor disciplined?
Ch 7 Special Ethics Rules Prosecutors and Judges

Q. 7-2 p. 696
Under RPC 3.8 May the prosecutor
ethically offer this plea arrangement
when all agree that Walker would be
pleading guilty to a crime he did not
commit?

(A) Yes

(B)No
Ch 7 Special Ethics Rules Prosecutors and Judges

Bordenkircher. Hayes (1978) p. 697

Does a Prosecutors threat in plea

negotiations to indict for more
serious charges violate due process?

$88.30 theft

Offer 5 years declined

New indictment, trial-- Life in

prison
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Package deals p. 702

Wired pleas
To say a practice is coercive or
renders a plea involuntary means
only that it creates improper
pressure on an innocent person to
plead guilty.

Only physical harm, threats of

harassment, misrepresentation, or
bribes render a guilty plea
involuntary.
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Q. 7-3 p. 720
Is the prosecutor constitutionally
or ethically required to disclose
the death of the eyewitness?

(A) Yes
(B)No

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Prosecutorial disclosure options

Material exculpatory or sentence

mitigating evidence (Brady rule)

Open file (N.C., N.J.)

All favorable evidence RPC 3.8

(d)

All favorable evidence

(Murkowski)

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Prosecutors expert witnesses

Should pre-trial reports and

opportunity to depose
prosecution experts be extended
to criminal cases as in civil?

Should defense experts be

handled the same way?
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Brady v. Maryland, 373 U.S. 83 (1963)

Evidence that is favorable to an

accused and not turned over by
prosecutors upon request violates
due process where the evidence is
material either to guilt or to
punishment, irrespective of the good
faith or bad faith of the prosecution.
Should there be a 1983 action for
breach of a supervisory duty to train
A.P.s?
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RPC 3.8 (d)

The prosecutor in a criminal case shall:

(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
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ABA Formal Opinion 09-454

RPC 3.8 (d) does not implicitly
include the materiality limitation (in
Brady). The Rule requires
Prosecutors to disclose favorable
evidence so that the defense can
decide on its utility.

Due process requires special

precautions to prevent the conviction
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Fairness in Disclosure of Evidence Act

Prosecutor must disclose all

information, data, documents,
evidence, or objects that may
reasonably appear to be favorable to
the defendant in a criminal
prosecution brought by the United
States with respect to
- guilt
- any preliminary matter
- sentence
Does this go too far? Not far enough?
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Fairness in Disclosure of Evidence Act

Prosecutor must disclose all

(b) the attorney for the
Government shall provide to the
defendant any covered information
(1)that is within the possession,
custody, or control of the prosecution
team; or
(2)the existence of which is known,
or by the exercise of due diligence
would become known, to the
attorney for the Government.
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Conviction Review Unit | The Brooklyn D

istrict Attorney's Office

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RPC 3.8 (g)

A prosecutor in a criminal case shall:

(g) 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
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RPC 3.8 (g)

(2) if the conviction was obtained in

the prosecutors 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.
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Post conviction evidence of

innocence RPC 3.8 (h) p. 745

[w]hen a prosecutor knows of clear

and convincing evidence that the
defendant in the prosecutors
jurisdiction did not commit the offense,
the prosecutor shall seek to remedy
the conviction.
Is clear and convincing too high a bar?
Should it be reasonable doubt?
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Should county prosecutors bow out of

police shooting cases?

Since Prosecutors depend on the

local police everyday, should they
step aside in cases where police
excessive force is an issue?
Should St. Louis Prosecutor
McCulloch have recused in the
Michael Brown case because his own
father was murdered by a black
man?
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Martin Strouds lament

http://
blackstonetoday.blogspot.com/2015/0
3/prosecutor-apology-to-glenn-ford.
html

Does Stroud owe Glenn Ford an

apology or only regrets?

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Willingham

Is discipline too slight a

sanction?

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Judges
Codes of Conduct

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Q. 7-4 p. 750 Did the judge act properly?

(A) No, because the judge participated in

an ex parte communication.
(B) No, because there was still time for
the calling lawyer to notify opposing
counsel in order to reach agreement on
rescheduling the pretrial conference.
(C) Yes, because the ex parte
communication was for scheduling
purposes only and did not deal with
substantive matters or issues.
(D) Yes, because there was no one else
in the office to take the lawyers call.
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Q. 7-5. p. 751 Is the judge subject to

discipline?
(A) Yes, because the judge sought an ex
parte communication on the merits of a case
pending before him.
(B) Yes, because the judge initiated a
discussion with a colleague .
(C) No, because the judge is permitted to
obtain the advice of a disinterested expert on
the law.
(D) No, because the judge was permitted to
consult about a pending case with another
judge.
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Question 7-6, Casebook p. 753

Is it proper for the judge to hear the
case?
(A) Yes, because Judge is particularly
well qualified to preside at the trial.
(B) Yes, because Judge believes his
judgment will not be affected by his
brothers stockholding.

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Question 7-6, Casebook p. 753

Is it proper for the judge to hear the
case?
(C) No, because disqualification based
on a relatives financial interest cannot
be waived.
(D) No, unless after proper proceedings
in which Judge did not participate all
parties and their lawyers consent in
writing that Judge may hear the case.

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CAPERTON v. A.T. MASSEY COAL

CO., INC. (2009)

Litigant made huge independent

expenditures to defeat a judges
opponent
which offer a possible temptation to the
average . . . judge to . . . lead him not to
hold the balance, nice, clear and true[,]
the probability of actual bias rises to an
unconstitutional level.
Is this standard so vague that it will lead to
groundless charges of bias against
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John Oliver Last Week Tonight

Yulee v. Florida Bar

https://youtu.be/poL7l-Uk3I8

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Yulee v. Florida Bar (2015)

ACLU brief: a rule of judicial

conduct that prohibits
candidates for judicial office
from personally soliciting
campaign funds violates the
First Amendment.

Should judges be free to endorse

Ch 7 Special Ethics Rules Prosecutors and Judges

other candidates?

34

Iowa Supreme Court Justices Ousted

by Anti-same sex marriage campaign

Is there anything wrong with such

campaigns?
If you are pro-same sex marriage
rights would you see anything wrong
with campaigning against judges who
reject it?
Should each state choose its own
preference or the U.S. Supreme Court
embrace a national rule via the 14th
Amendment?
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Should Judges speak out on policy?

Breyer and Kennedy: testify in

Congress solitary confinement
drives men mad

Rakoff: judges should speak out

against mass incaceration

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HR 862 (2011)

Supreme Court Transparency and

Disclosure Act of 2011 - Applies to
Supreme Court justices the same code
of conduct that applies to U.S. circuit
and district judges.
Directs the U.S. Judicial Conference to
establish procedures under which
complaints alleging that a justice
violated such code of conduct may be
filed with and investigated by the
Conference.
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HR 862 (2011)

Requires a justice to publicly disclose

the reasons for:
(1) disqualifying himself or herself,
under specified provisions of the
federal judicial code, from any case
in which his or her impartiality might
reasonably be questioned; or
(2) denying a party's motion for such
disqualification.
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HR 862 (2011)

Directs the Conference to

establish a process in which
other justices or federal judges
decide whether a justice should
be disqualified when a party who
is denied such a motion seeks
further review.
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Honoraria and earned outside

income

U.S. senior officials cap 15% of

base pay

Honoraria barred but may

donate up to $2,000

NJ - NO outside income from

work

Which is the better rule?

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BP v. Juneau

Patrick Juneau is the court-appointed

administrator of the court-supervised
Deepwater Horizon Settlement
Program

Did the District Court correctly

conclude that he did not have any
disqualifying conflict of interest?
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Code of Conduct for United States Judges

This Code applies to United States

circuit judges, district judges, Court
of International Trade judges, Court
of Federal Claims judges, bankruptcy
judges, and magistrate judges.
Certain provisions of this Code apply
to special masters and
commissioners as indicated in the
Compliance section. The Tax Court,
Court of Appeals for Veterans Claims,
and Court of Appeals for the Armed
Forces have adopted this Code.
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CANON 1: A JUDGE SHOULD

UPHOLD THE INTEGRITY AND
INDEPENDENCE OF THE JUDICIARY

An independent and honorable

judiciary is indispensable to justice in
our society. A judge should maintain
and enforce high standards of
conduct and should personally
observe those standards, so that the
integrity and independence of the
judiciary may be preserved. The
provisions of this Code should be
construed and applied to further that
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CANON 2: A JUDGE SHOULD AVOID

IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES

(A)Respect for Law. A judge should

respect and comply with the law and
should act at all times in a manner that
promotes public confidence in the
integrity and impartiality of the
judiciary. Does it undermine public
confidence if a judge goes hunting with
the vice-president? Speaks at the
ACLU? At a Americans for Prosperity
the Koch brothers group? Accepts an
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CANON 2:

(B)Outside Influence. A judge should

not allow family, social, political,
financial, or other relationships to
influence judicial conduct or judgment.
A judge should neither lend the
prestige of the judicial office to
advance the private interests of the
judge or others nor convey or permit
others to convey the impression that
they are in a special position to
influence the judge. A judge should not
testify voluntarily as a character
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CANON 2: A JUDGE SHOULD AVOID

IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES
(C)Nondiscriminatory Membership. A
judge should not hold membership in
any organization that practices
invidious discrimination on the basis
of race, sex, religion, or national
origin.

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Canons 3.4.5

CANON

3: A JUDGE

SHOULD PERFORM THE

DUTIES OF THE OFFICE
FAIRLY, IMPARTIALLY AND
DILIGENTLY

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Canons 3.4.5

CANON

4: A JUDGE MAY

ENGAGE IN EXTRAJUDICIAL
ACTIVITIES THAT ARE
CONSISTENT WITH THE
OBLIGATIONS OF JUDICIAL
OFFICE
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Canons 3.4.5

CANON 5: A JUDGE SHOULD

REFRAIN FROM POLITICAL
ACTIVITY

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UCWR and Term papers

Name and exam #

15 pp term papers
25 pp UCWR
Footnotes
1.5 or 2.0 line spacing
Georgia 12 point type
Due Friday April 24 -5:00 PM
Extensions may be granted to May 7
for graduating students term papers
To May 14for UCWR
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Final exam

MPRE type questions

#2 pencils
Rules and comments
Questions in book
Slides and underlying notes

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