As it well known, prosecutors are subject to the same ethics rules as lawyers. There some notable differences, however. Prosecutors, unlike lawyers, have an obligation to do justice (see Comment [1] to Model Rule 3.8[i] and case law[ii]), although the exact boundaries of this obligation are unclear. Rule 3.8 itself is specific to prosecutors [iii]containing important obligations that set prosecutors apart from lawyers among which the duty to disclose exculpatory evidence to the defendant [iv]). However, disciplinary actions against prosecutors are rare in most jurisdictions; although prosecutors are subject to disciplinary action from state bar associations, there is very little done other than closed-door censures.
Roughly about 30% of the 2,515 wrongful convictions that have been overturned in the past three decades are a result of prosecutorial misconduct. In spite of that, less than 5% of those prosecutors are disciplined. Over the past several years, many high-profile convictions involving “official” misconduct has led to a discussion on prosecutorial power, discretion, and accountability. For example, Mississippi District Attorney Doug Evans gained national attention for trying Curtis Flowers six times for the same crime.[v]
Although prosecutors may be subject to criminal liability for crimes related to prosecutorial misconduct, such as hiding evidence or suborning perjury, due to the Supreme Court decision in Imbler v. Pachtman, prosecutors are immune from civil lawsuits. Prosecutors argue that complete and absolute immunity from liability in civil suits is critical due to the nature of their job. Nonetheless, other forms of prosecutorial oversight are also lacking. For example, prosecutors are rarely charged for crimes like contempt of court.
Many factors have weakened the current system reviewing prosecutorial misconduct. One large factor is that the lines between misconduct and honest mistakes are hard to decipher. Committees and oversight boards generally lack the resources to investigate murkier cases. Another large factor in the failures of prosecutorial oversight is the lack of transparency. Almost all of the committees and oversight boards that currently review allegations of prosecutorial misconduct operate in total secrecy. Another large factor in the failures of prosecutorial oversight is politics. Prosecutors are viewed as prestigious and powerful in the legal community. This has led to both lawyers and judges attempting to not alienate prosecutors.
Nonetheless, slowly there are signs that the tides are turning. Across the country, there have been various attempts to combat prosecutorial misconduct. Some jurisdictions have implemented a conviction integrity unit in its district attorneys’ offices. Other jurisdictions have begun referring cases of prosecutorial misconduct to the State Supreme Court’s disciplinary commission or an independent prosecutor, such as the State’s attorney general. Some attempts to reform the current system, however, are being stymied by prosecutors themselves. Last year, New York’s governor signed a bill designed to establish the independent Commission on Prosecutorial Conduct. This commission, made up of judges, prosecutors, and defense attorneys, was tasked with investigating bad behavior. Yet, the District Attorneys Association filed a lawsuit to block the bill. The association claimed the bill was unconstitutional as it violated the separation of powers doctrine by creating a “hybrid” political organization designed to regulate prosecutors who were under the executive branch.
Today, more convictions tend to correlate with more promotions. Harvey Silverglate, an established criminal defense attorney and outspoken civil libertarian, told the HuffPost, “Publicity and high conviction rates are a stepping stone to higher office.” This culture tied with lack of oversight has made prosecutors practically untouchable. Of the 13,565 wrongful convictions involving “official misconduct” by prosecutors, 96 wrongful convictions involved the death sentence. Self-regulation and professional discipline are not enough to tackle misconduct by prosecutors. Reform is essential to protect citizens’ civil liberties and assure that prosecutors are not abusing their power. However, there is a downside to increase scrutiny of prosecutors. In most jurisdictions, prosecutors are elected; political opponents can use the disciplinary process to attack good prosecutors that have different approaches to prosecution.
For more information, Nathan M. Crystal, defending lawyers and prosecutors in disciplinary proceedings.
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[i] Comment [1] to Rule 3.8
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. (Emphasis added)
[ii] See, e.g., Berger vs. United States, 295 U.S. 78 (1935), in which the Supreme Court stated:
[The prosecutor] may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
[iii] Rule 3.8: Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) 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;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(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;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(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
(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.
(h) 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.
[iv] The ethics obligation of rule 3.8(d) is arguably wider than the “Brady obligation (Brady v. Maryland, 373 U.S. 83 (1963). See also Giglio v. United States, 405 U.S. 150 (1972)) because it includes an obligation of timely disclosure, it applies to all the evidence that “tends to negate the guilt of the accused or mitigates the offense” – and not only to the material ones. For a comparison between the Brady obligation and the ethics rule, seeNathan M. Crystal, Disclosure Obligations of Prosecutor, South Carolina Lawyer 8 (Sept. 2010), available here
[v] The Supreme Court overturned Flowers’ latest conviction in June 2019( Flowers v. Mississippi), recognizing that Evans had continuously been involved in prosecutorial misconduct for 22 years. Nonetheless, Evans was reelected a few months following the Supreme Courts’ decision as the district attorney for Mississippi’s Fifth Circuit Court District for his eight-term. Nor has Evans received any form of public disciplinary censure. Despite public condemnation and public outrage over Evans’s conduct, Evans is attempting to prosecute Flowers for the seventh time for the same quadruple murder.
