By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Recently, the special duties of criminal prosecutors have been more fully detailed by the new Rules of Professional Conduct adopted by the Illinois Supreme Court and by ABA Formal Opinion 09-454.
Existing Rule 3.8 of the Rules of Professional Conduct, like the newly adopted rule, begins by stating that the duty of a "public prosecutor or other government lawyer" is to seek justice, not merely to convict. The new rule, effective Jan. 1, 2010, does not include other government lawyers, only public prosecutors. The comments to the new rule do not explain why the rule no longer applies to other government lawyers.
Both versions of the rule prohibit a public prosecutor from prosecuting a charge that the prosecutor knows is not supported by probable cause, but while the current version of the rule includes other government lawyers, this section of the new rule is directed only at "prosecutors in criminal cases."
Newly adopted Illinois Rule 3.8 contains additional provisions that were not part of the existing rule.
For example, section (b) of the new rule requires a criminal prosecutor to "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."
Section (c) prohibits a criminal prosecutor from obtaining a waiver of important pretrial rights, such as the right to a preliminary hearing, from an unrepresented accused. The comments explain that section (c) does not apply to an accused appearing pro se with the approval of the tribunal or forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.
Section (e) prohibits a criminal prosecutor from serving a subpoena on a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client, except when the prosecutor reasonably believes that the information sought is not protected from disclosure by any applicable privilege, the evidence sought is essential to the successful completion of an ongoing investigation or prosecution, and there is no other feasible alternative to obtain the information.
The current rule requires government lawyers in criminal cases to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused or mitigate the degree of the offense.
Section (d) of the new rule contains that same requirement, but adds the additional duty, in connection with sentencing, to disclose to the defense and to the tribunal all unprivileged mitigating information, except when excused by a protective order of the tribunal. The comments to the rule recognize that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
Recently adopted ABA Formal Opinion 09-454 (July 8, 2009), discussing ABA Model Rule 3.8, which is substantially the same as Illinois Rule 3.8(d), notes that the ethical duty imposed by the rule "is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders."
As to the timing of such disclosure, it must be made "as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation." In connection with sentencing proceedings, the opinion notes that prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. To be timely, disclosure of this information "must be made sufficiently in advance of the sentencing for the defense effectively to use it and for the tribunal fully to consider it."
The ABA opinion explains that evidence or information "mitigates the offense," "if it tends to show that the defendant's level of culpability is less serious than charged."
It notes that Rule 3.8(d) requires disclosure only of evidence and information "known to the prosecutor" and that, under the rules, knowledge means "actual knowledge," which "may be inferred from [the] circumstances." The opinion notes that the rule does not establish a duty to undertake an investigation in search of exculpatory evidence. The opinion warns, however, that "nothing in the rule suggests a de minimis exception to the prosecutor's disclosure duty."
Formal Opinion 09-454 states that a prosecutor and defendant cannot, as a condition of receiving leniency, agree that the defendant will forgo evidence and information that would otherwise be provided. It explains that a defendant's consent "does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant's consent to his violation of the rule."
Criminal practitioners would be well advised to review both the new Rule 3.8 and ABA Formal Opinion 09-454.