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									      Ethical Dilemmas
       for Prosecutors

     Instructor Outline
                           By

                      Robert Kepple

                     General Counsel

     Texas District and County Attorneys Association


Prepared through a grant from the National Highway Traffic

                  Safety Administration

                        May, 2001
                               Introduction.
       A lecture on ethics. By now you are yawning. That is the challenge to any
organization offering ethics training for prosecutors, and to any individual instructor with
enough self-esteem to survive the bad student evaluations that usually follow such an
event.

        The Ethical Dilemmas for Prosecutors course will change that. This training is
based on an ethics presentation originally made at the Harris County, Texas, District
Attorney's Office in 1988. The original ethics scenarios were presented by a moderator to
a panel of district attorneys, defense attorneys, judges and law professors. Prosecutors in
the audience were allowed to participate in grilling the panel. The result was a spirited,
and sometimes outrageous, debate that left the audience wanting more. The debate
concerning the proper ethical response to the scenarios raged for weeks and months after
the original presentation. Most significantly, prosecutors continued to reflect on their own
personal code of ethics.

        After its initial success, the original course was modified to abandon the panel
and rely on the audience itself to drive the learning experience. This allowed course
organizers to offer the presentation without the expense of a panel of experts. The course
has been equally successful in this format. The scenario-based learning works with any
size audience, and with prosecutors of all experience levels.

        The key to the success of this ethics course is student participation. Rather than
plop the students down for another boring lecture, this course is designed to actively
involve the students in the learning. The students challenge each other, and ultimately
themselves, as they grapple with difficult ethical scenarios that they have faced, or
undoubtedly will face, as a prosecutor. The result is a group of prosecutors who have a
heightened awareness of the role that prosecutor ethics plays in their daily practice, and
who hopefully will continue to develop their personal ethical code of conduct.


                  The Goal of This Course.
       The goal of this course is to start prosecutors on the road to developing their
personal ethical standards for their work as a prosecutor.

        All prosecutors are taught that the paramount ethical standard of a prosecutor is
"to do justice, not simply to convict." Beyond that, however, there is little guidance. The
ethical rules written for lawyers by and large do not address the unique roles that
prosecutors play as representative of the people, officer of the court, and contestant in the
competitive trial arena. Indeed, the published ethical rules are often irrelevant when it
comes to the tough decisions that prosecutors must make on a daily basis.




Ethical Dilemmas for Prosecutors              2                           Instructor Outline
         Prosecutors have broad discretion to drastically affect and change the lives of
defendants, victims and the general public. At the same time, we are largely immune
from ethical grievances based on the use of this prosecutorial discretion. However,
immunity from sanction under the local rules of professional responsibility should not
end the discussion. With prosecutorial discretion comes the responsibility to use that
discretion wisely and fairly. Therefore, the printed ethical rules should be considered just
a starting point. Prosecutors should be circumspect about their duty to seek justice, and
should continue to fill in those "gray areas" of prosecutor discretion with their own
ethical standards.



                     The Course Materials.
      These course materials include everything needed to produce a successful Ethical
Dilemmas for Prosecutors course. The package includes:

1. Instructor Outline for Ethical Dilemmas for Prosecutors.
2. Ethics Scenarios to be provided to the students.
3. Resource Materials to be provided to the students.
4. ABA Ethics 2000 Descriptive Material.
5. ABA Ethics 2000 Rules.
6. A PowerPoint presentation of the course materials.

        These materials were designed for use in any jurisdiction "as is." Even though the
materials provided can be used effectively, instructors are encouraged to add to, delete
from or alter the fact scenarios or the reference material. It is always helpful to provide
citations to the ethical standards applicable in the relevant jurisdiction, and there may be
great local material that will help make a point with the students.

       The citations in the scenarios are to: 1) the 1995 edition of the American Bar
Association Model Rules of Professional Conduct (first approved by the ABA on August
2, 1983); 2) the National Prosecution Standards, Second Edition (published by the
National District Attorneys Association in 1991); and 3) the American Bar Association
Standards Relating to the Administration of Criminal Justice (approved by the ABA in
1992).


                       The Course Content.
         The course that is provided in these materials has four identifiable segments. The
first three segments are short, lecture-style segments. They are designed to make the
students aware of the unique role of the prosecutor, the lack of clear guidance in the area
of prosecutor ethics and the need to develop a personal ethical code of conduct. The final
segment, the discussion of the scenarios, is the "guts" of the course.



Ethical Dilemmas for Prosecutors             3                            Instructor Outline
        It is important that the first three introductory segments be short and concise.
They are designed to set the stage for the ensuing debate. If the introduction devolves into
a lecture, the instructor risks losing the interest of the students.

        The final segment is designed to be flexible. The discussion by the students never
develops the same way twice. Although it is common for instructors to worry that they
will not have enough material, the students invariably only get through six or seven of
these scenarios in and hour and a half. Therefore, instructors are encouraged to skip
around to the scenarios that they want to be sure to cover.


                     The Use of Visual Aids.
        By now, everyone who has taught at a seminar knows the importance of visual
aids. They are especially important for any presentation on a topic such as ethics, where
the students come expecting the worst.

       The visual aids provided are designed to keep the attention of the audience, and to
provide humorous icebreakers as a way to stimulate discussion about the individual
scenario. And by sometimes taking extreme positions, they often help focus the debate.
The course instructor should add or delete visual aids as needed.


               Scenario - Based Instruction.
        The goal of this course dictates its format. It is difficult to successfully lecture
prosecutors on how to "be ethical." An instructor can, however, focus the students'
attention on the ethical issues that prosecutors face, and encourage the students to
develop their own set of ethical responses to a given problem.

        Therefore, this course is designed to be "instructor led/student centered." The
instructor offers the students a realistic factual scenario. Many times, there is no clear
"answer" to the issue presented. The instructor acts as the "talk-show host" by framing
the issues, inviting the debate, and challenging the students to think through the problem.
The students themselves explore the issues and potential responses. You know the
training has been successful when the instructor can't get a word in edgewise, and the
discussion continues at coffee breaks for the rest of the seminar.

       There are four key ingredients to the success of the course which the instructor
must supply:

1. Energy. The instructor must be very dynamic. The audience must be drawn into
the debate by the instructor's interest in the topic, so the instructor has to work
hard to keep the discussion lively.

2. Involvement. The instructor must actively involve the students, which means



Ethical Dilemmas for Prosecutors               4                             Instructor Outline
that the instructor must aggressively seek audience participation and challenge the
students with tough issues. Remember this motto: silence is deadly.

3. Advance planning. The instructor must have, in advance, thoroughly considered
every argument and position that can be taken on any given scenario, and be
prepared to challenge the students with it. In addition, the instructor must be
prepared to offer the factual additions or variations that may change a student's
attitude towards a problem.

4. Flexibility. Because this training is student-centered, the discussion may head off
in an unanticipated direction, or develop in an unexpected way. Most of the time,
that's good -- the students are doing exactly what we want by grappling with the
issues. The best thing to do is to simply "take it and run with it." Of course, the
instructor is responsible for keeping the discussion productive and moving
forward. No dead horse beatings allowed.


        A General Format for a Discussion
                of the Scenarios.
        The purpose of a group discussion of the scenarios is to allow the students to
explore all of the ethical considerations involved, and encourage them to find their own
solutions. Some groups of students will be very active, and will require very little
prodding from the instructor. Others will require some extra guidance to keep the
discussion moving. It is the instructor's job to introduce applicable rules, elicit all of the
different arguments for or against different positions, and make sure that all of the
different nuances are explored.

        With that in mind, here is a general format for a discussion of any scenario:

1. Introduce the scenario by reading it or summarizing it aloud.

2. Offer some humorous visual to break the ice and get the students talking among
themselves.

3. Throw it open for discussion. Any ideas? What would you do?

4. Don't let silence set in. If there is no immediate volunteer, look around. Someone is
usually making eye contact as if they are ready to speak, or someone is nodding or
shaking their head as if they have a strong opinion. Go to the students and get their
opinion. Ask them to explain their position.

5. Ask the group for other reasons that a prosecutor might take that particular course of
action. Get as many ideas on the table as you can, and make sure to explore the
reasoning.



Ethical Dilemmas for Prosecutors               5                             Instructor Outline
6. Solicit opposing positions. Anyone disagree? Why? Many times, you will see people
shaking their heads in disagreement, or talking with others about the scenario in private
conversations. Call on those people to voice their opinions if they don't immediately
volunteer.

7. Propose different positions if no one else will, or if the students have overlooked some
interesting arguments. If something is being missed in the debate, or no one takes the
opposite position, the instructor must step in. "But what about this?" "What is your
response to my argument that ....?" You may be setting up straw men just to be knocked
down, but it will encourage debate if folks are still reluctant to talk.

8. If appropriate to the scenario, change up the facts. Once the students have explored the
written scenario and are getting comfortable with their resolution of the problem, test
their personal conclusions by changing your facts. For instance, in Scenario Number 1 a
prosecutor may file an intoxication manslaughter charge even though the evidence will
not survive a motion to suppress. However, that same prosecutor may not file the case if
it is a garden variety DWI. Why? What are the competing interests?

9. If appropriate to the scenario, change up the size of the jurisdiction. Sometimes folks
will make decisions at least in part based on whether or not they think anyone will find
out, or whether they must continually deal with the same police officers, defense lawyers
and judges. Challenge the students to think about how those issues plug into their
personal code of ethics.

10. Go where the discussion takes you. The instructors should have all of the different
answers and issues firmly in mind, but should allow the students the freedom to take the
discussion in different directions. Once the group fully discusses one idea, then the
instructors can take the students in a new direction.

11. Reveal any helpful authorities. Save the authorities for the end of the discussion on
any particular scenario. Offering them to the students at the beginning may lead the
students to believe that they have just been given the answer, so they do not need to
participate in the discussion.




Ethical Dilemmas for Prosecutors             6                           Instructor Outline
       Segment 1: Why Prosecution
              is Different.

The Purpose of this Segment.
       This segment is designed to highlight for the students why the ethical
considerations for prosecutors are different from the ethical considerations of all other
lawyers, especially criminal defense lawyers. It is also designed to quickly peak the
students' interest in this session.


Instructor Outline:                                                   Notes:
The first two slides are simply examples of
opening slides that you may chose to have
displayed as the students are gathering for
the session. The first one is for the
beginning; Visual 2 is for display at the end
of the session.

Visual 1: Credo

Visual 2: Credo


Visual 3: Cover of “Voice for the Defense”

The instructor should introduce the Article
on "DWI Practice Gems." The article is
interesting because it seems to go a bit too
far in "preparing" the DWI defendant for
cross examination.

Visual 4: Question 8

Visual 5: Question 12

Visual 6: Question 13



Ethical Dilemmas for Prosecutors                7                         Instructor Outline
Visual 7: Question 14

Wait a second? How can we be sure that the
defendant's answer will not track the offense
report unless the defendant is fully informed
about the offense report and is encouraged
to "modify" his testimony?

Visual 8: Question 19

Wow; if a defendant pops up with that
answer you know he has been coached.

Visual 9: Question 20

Most jurisdictions have rules that prohibit
both parties from mentioning a plea bargain
offer. It should be disturbing to people that
the author of the article suggests that
defense attorneys prepare their clients to
deliberately violate that rule.

Visual 10: Question 21

Well, there's that probation offer being
shoved in again.

Why is this happening? Here is an
authoritative pronouncement of defense
attorney ethics, and the students may be
surprised about the source.

Visuals 11-16: U.S. v. Wade

Here are the basic rules for all lawyers:

Visual 17 and 18: Preamble: A Lawyer's
Responsibilities.

Visual 19: The role of the defense attorney
quote.




Ethical Dilemmas for Prosecutors                8   Instructor Outline
There is nothing wrong with this position,
but when you start from that position you
can see why the defense can sometimes
cross the line.

Visual 20: "A reasonable doubt for a
reasonable fee..."

To many defense attorneys, these rules may
boil down to this:

Visual 21: The Defense Rule of Ethics.




Ethical Dilemmas for Prosecutors             9   Instructor Outline
             Segment 2: The Lack of
            Guidance for Prosecutors
The Purpose of this Segment.
        Prosecutors have a potent mixture of power and discretion over the affairs of
others. With that power comes a responsibility to use it wisely. Unfortunately,
prosecutors will find a lack of hard and fast answers in the printed ethical rules and the
law books. Frankly, many of the important decisions that prosecutors make are not
reviewable by any authority. Therefore, prosecutors need to develop their personal code
of conduct.


Instructor Outline:                                                  Notes:
Why is a prosecutor different?

Visual 22: Rule 3.8, Comment 1...

Unfortunately, the sum total of detailed
ethical rules for prosecutors supplied by the
ABA (and most other jurisdictions) is in one
rule:

Visual 23-31: Rule 3.8...

Here, instructors should supply any other
local laws or rules that are specifically
related to prosecutor conduct.


Visual 32: NPS 1.1

Once again, not too much help.




Ethical Dilemmas for Prosecutors            10                           Instructor Outline
       Segment 3: Development of a
         Personal Code of Ethics.
The Purpose of this Segment:
        This segment takes the students on a short and humorous trip through various
"ethical" standards that a student may consider when making personal ethical decisions.
The point is to emphasize to students that they are going to have to take responsibility for
developing their own ethical standards.


Instructor Outline:                                                  Notes:
So where can we find our ethical standards?
The dictionary is not much help:

Visual 33: Definition of "ethics."

Visual 34: Definition of "moral."

The ultimate ethical rules:

Visual 35: The Ten Commandments.

Historical references aren't much help:

Visual 36: Connecticut Colonial statute.


Visual 37: The headline rule.

This actually may be a very practical way to
test your ethical response. Would you like to
see your conduct on the front page of the
paper? Many prosecutors go by this rule.




Ethical Dilemmas for Prosecutors             11                           Instructor Outline
Visual 38: What would he do?

The Superman Rule may apply. As you
recall, Superman always plays fair. If he
would just go and kill Lex Luther first, he'd
save himself a bunch of trouble. But that just
wouldn't seem right.


Visual 39: John Wayne.

How about the "Hero Rule?" What would
John Wayne do?

Visua1 40: The Marine Corps Rule.

And if all else fails, how about the Marine
Corps Rule? (Of course, intended to be
humorous.




Ethical Dilemmas for Prosecutors              12   Instructor Outline
                Segment 4: Discussion of
                    the Scenarios.

                        Scenario Number 1
        An officer comes to you wanting to file charges in an intoxication manslaughter
case. A week before, there was a terrible car wreck that killed two people. Our potential
defendant was intoxicated at the crime scene, but no one saw him driving and it wasn‟t
his car. Unfortunately, the only evidence that we have to "wheel" the defendant is an oral
statement he gave to an overzealous rookie officer who got to the scene 15 minutes after
the wreck. He arrested the defendant because he was the only guy there. The officer
then got the statement without following the proper Miranda procedures.

       After looking at the law, you know that if the defense attorney urges a motion to
suppress the statement, we will lose. It's not even close. And without the statement, we
have no case.

       Do you file the case?


References:
MR 2.1
MR 3.1
MR 3.8

Ethics 2000 MR 3.1

NPS 1.3
NPS 42.2
NPS 42.3
NPS 42.4
NPS 43.1
NPS 43.3
NPS 43.4
NPS 43.6

CJS 3-3.9(a)




Ethical Dilemmas for Prosecutors            13                          Instructor Outline
The Purpose of the Scenario.
        The purpose of this scenario is to focus the students on the considerations
involved in making a charging decision. The scenario is written so that there is clearly
probable cause to charge the defendant, but there is no chance of prevailing on the case.
The students should grapple with whether or not there are any legitimate reasons to file
the case.

         As the students work through the scenario, they should realize that there are many
practical considerations that go into the charging decision. In addition, they may see that
their interest in trying anything to make the case changes depending on just how serious
the case actually is. Their individual notions of "justice" may change depending on the
combination of various factors.


Instructor Outline:                                                 Notes:
Should the case be filed?

Visual 41: You can beat the rap....

Yes:

1. You have probable cause; end of
discussion.
2. Don't do the defense attorney's job.
3. Maybe the defendant will plead.
4. Let the judge take the heat; that's his job.
5. You may not win, but the defendant
should at least have to go to jail and make
bond.
6. The guy is guilty, so do the most you can
do.
7. You are just one cog in the criminal
justice wheel; just do your part.
8. This cop is always screwing up, file it
and let the defense attorney teach him a
lesson in court!

No:
1. There is no chance of winning, so it
wastes your valuable time.



Ethical Dilemmas for Prosecutors              14                        Instructor Outline
2. Filing it would be improper harassment of
the defendant.
3. Filing it would just reward the cop for bad
work.
4. Even if the defense attorney doesn't file a
motion to suppress, it will get reversed for
ineffective assistance of counsel.
5. You will lose credibility with the court.

Change the facts:

1. Suppose the case is a garden variety DWI.
Is anyone interested in filing it now?
2. Suppose you are the elected prosecutor in
a small jurisdiction, as opposed to one
assistant in the office of one hundred. Does
that make a difference? Should it?
3. Change to different types of cases
depending on audience interests -- compare
a 1 gram and a 10 kilo case made on a
clearly bad warrant. Any differences?

Visual 42: MRPC 3.8

Visual 43: Rule 3.8, JAG

This is just an icebreaker....what happened
such that they need this rule?????

Visual 44: MRPC 3.1

Visual 45: NPS 43.3

Useful references:

1. MR 3.1: "A lawyer shall not bring or
defend a proceeding, or assert or controvert
an issue therein, unless there is a basis for
doing so that is not frivolous...".

2. MR 3.8(a): "The prosecutor in a criminal
case shall refrain from prosecuting a charge
that the prosecutor knows is not supported
by probable cause...".




Ethical Dilemmas for Prosecutors                15   Instructor Outline
3. NPS 43.3: "The prosecutor should file
only those charges which he reasonably
believes can be substantiated by admissible
evidence at trial."

4. NPS 43.4: "The prosecutor should not
attempt to utilize the charging decision only
as a leverage device in obtaining guilty pleas
to lesser charges."

5. NPS 43.6: Lists all the possible factors a
prosecutor may consider in making a
charging decision.

6. CJS 3-3.9(a): "...A prosecutor should not
institute, cause to be instituted, or permit the
continued pendency of criminal charges in
the absence of sufficient admissible
evidence to support a conviction."

7. Ethics 2000 Rule 3.1: “A lawyer shall not
bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a
basis in law and fact for doing so that is not
frivolous, which may include a nonfrivolous
argument for an extension, modification or
reversal of existing law...”




Training Tip: Don't let the students wiggle out of the tough decisions by changing the
facts! You control the facts, so hold their feet to the ethical fire!




Ethical Dilemmas for Prosecutors                16                      Instructor Outline
                        Scenario Number 2
         You are set for trial Monday on a one-witness intoxication manslaughter and
failure to stop and render aid case. You learn Sunday night that your one eye-witness to
the crime died in a car accident over the weekend. On Monday morning, the defense
attorney:

       1. Wants to plead his defendant to pen time.

       2. Wants to plead his defendant, and asks if you are ready for trial.

       3. Wants to plead his defendant, but would like to ask your witness a couple of
questions first.

        4. Before you even have time to answer the defense attorney, the judge enters the
courtroom and begins asking for announcements on the trial cases. He calls your case and
asks for the State's announcement. What do you say?


References:
MR 3.3(a)
MR 3.8 (d)
MR 4.1
MR 8.4(c) & (d)

Ethics 2000 MR 3.1

NPS 1.3
NPS 25.3
NPS 25.4
NPS 68.1 (P)

CJS 3-1.2
CJS 3-2.8(a)
CJS 3-3.9(a)

Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
People v. Jones, 375 N.E. 2d 41, 44 N.Y.S. 2d 76; Cert. Denied 439 U.S. 846 (1978).




Ethical Dilemmas for Prosecutors            17                           Instructor Outline
                     Variation to Number 2
        You are in the middle of trial on an intoxication assault case. You are getting to
your blood evidence, and you find that you are missing some witnesses in your chain of
custody. You look over at the defense counsel, and remark to yourself that he doesn't
seem that sharp. You casually walk on over to him at the break, and ask him if he will
stipulate to your chain of custody so you won't have to bother wasting everyone's time
and annoying the judge with boring chain of custody evidence.


References:
MR 3.3(a)
MR 3.8 (d)
MR 4.1
MR 8.4(c) & (d)

Ethics 2000 MR 3.1

NPS 1.3
NPS 25.3
NPS 25.4
NPS 68.1 (P)

CJS 3-1.2
CJS 3-2.8(a)
CJS 3-3.9(a)

Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
People v. Jones, 375 N.E. 2d 41, 44 N.Y.S. 2d 76; Cert. Denied 439 U.S. 846 (1978).



The Purpose of the Scenario.
        This scenario usually sparks the most interest with the students. The goal of the
scenario is to force the students to confront the issue of how their own personal
credibility and personal notions of "fair play" factor into their hunt for justice. The death
of the state's only witness is clearly not exculpatory material, but people feel "sneaky"
when they decide not to disclose it. As this scenario and its variations play out, students
see how their notion of justice may change depending on the seriousness of the case, and




Ethical Dilemmas for Prosecutors             18                            Instructor Outline
how practical considerations -- like the thought of getting caught and how that would
affect their ongoing relationship with the defense bar -- play into their decision-making.
Some students may draw some "bright-line" rules at the beginning, but may waiver when
the fact scenario is changed later on in the discussion.


Instructor Outline:                                                 Notes:
1. Should you take the plea?

Visual 46: You Bet!

Yes:

1. It's not Brady, so there is no problem.
2. He wants to plead, so that's enough
evidence to support a conviction.
3. The defense doesn't have to tell you
things like this, so fair's fair.

No:

1. It is dishonest.
2. You have a duty of candor to the tribunal,
and that includes the defense attorney.
3. You never really will know how the
witness would have done on the stand, so it
would be unfair to take the plea. Maybe at
trial the witness would not have identified
the defendant.
4. If you get caught, no one will trust you
anymore.

Question: is it Brady?

No: It is not evidence that tend to negate the
guilt of the defendant (although it sure will
negate a finding of guilt!)

Cite: People v. Jones. In that case, the state
did not tell a defendant that the state's only
witness had died. The defendant plead, but
found out before the sentencing date and
filed a motion for new trial. The trial court
denied the motion and sentenced the


Ethical Dilemmas for Prosecutors                 19                     Instructor Outline
defendant. The appellate court affirmed. It's
logic: the fact that the witness was dead was
a "tactical" consideration for the defendant,
to be sure, but it was not a fact that tended to
negate the guilt of the defendant.

2. What if the defense asks, if you
are ready for trial?

Visual 47: Are you ready....

3. Or, he wants to talk to your
witness before he pleas?

Visual 48: Can I talk to your witness...

         Variations 2 and 3 are injected to
take this scenario to the limit of the students'
ethical boundaries. Just how far are they
willing to push it? Does their personal sense
of justice allow them to walk right on the
line if the case is serious enough? Is this all
just part of the adversarial nature of the
practice? With that in mind, change the
circumstances:

Change the size of the jurisdiction:

1. You are prosecuting in Metropolis. No
one will ever find out that the witness died.
Does that make a difference to you? Should
that make a difference?
2. You are practicing in Smallsville. The
defense attorney will know that afternoon
that the witness died. Your reputation will
never be the same. Is that just the price of
doing justice, or are there some long-term
benefits to having that sterling reputation as
a prosecutor for the state?

Change the facts:

1. Your case is a garden variety DWI. The
one officer/witness has moved to a far away
state, and you aren't going to bring him


Ethical Dilemmas for Prosecutors               20   Instructor Outline
back. Who is willing to put their credibility
on the line for that?
2. Now it is a horrible case, and the
defendant is a downright evil guy. Your
witness is dead, but the defendant is a
monster and you know he will commit more
crimes if he gets out. Does that impact just
how close to the line you will get?

4. The judge asks for
announcements in the case. Do you
announce "Ready"?

Visual 49: Judge, I was born ready!

        A prefatory question might be: Are
you announcing “ready” for the benefit of
the judge, or because you know the defense
attorney is in the courtroom and is waiting to
hear what you say?

Yes:
1. I am ready for trial, although it will be
kind of short when we get to the part where
the state has to put on witnesses.
2. I am ready to do something with the case,
so my announcement is legitimate.
3. This is all a matter of trial tactics; I can't
ever blink in front of the defense bar.

No:
1. "Ready" means ready for trial. You can't
be ready without a witness.
2. An announcement of "ready" to the court
would be dishonest.

Discuss the variation:

       This variation takes what the
students have learned in the main scenario
and applies it to a common problem that
comes up in trial -- you are missing one of



Ethical Dilemmas for Prosecutors                21   Instructor Outline
the witnesses needed to get a piece of
evidence admitted.

Can you ask the defense attorney to
stipulate?

Yes.

1. It's not exculpatory; there are lots of
instances in which we offer evidence
without a perfect predicate.
2. If he doesn't object, no problem.

Can you mislead the defense attorney
on the reasons why you want to
stipulate?

Clearly not.

Useful references:

1. MR 3.3(a): "A lawyer shall not knowingly
make a false statement of material fact or
law to a tribunal."

2. MR 3.8(d): "The prosecutor in a criminal
case shall make timely disclosure to the
defense of all evidence or information
known to the prosecutor that tends to negate
the guilt of the accused..."

3. MR. 8.4(d): "It is professional misconduct
for a lawyer to engage in conduct involving
dishonesty, fraud, deceit or
misrepresentation."

4. NPS 25.4: "The prosecutor should
disclose the existence or nature of
exculpatory evidence pertinent to the
defense."




Ethical Dilemmas for Prosecutors             22   Instructor Outline
5. CJS 3-3.9(a): "A prosecutor should not
...permit the continued pendency of criminal
charges in the absence of sufficient
admissible evidence to support a
conviction." (But remember, in our scenario
the defendant is willing to plead guilty and
offer whatever evidence, like a judicial
confession of guilt, that would support the
conviction!)

6. Ethics 2000 Rule 3.1: “A lawyer shall not
bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a
basis in law and fact for doing so that is not
frivolous, which may include a nonfrivolous
argument for an extension, modification or
reversal of existing law...”




Ethical Dilemmas for Prosecutors            23   Instructor Outline
                        Scenario Number 3
         You are busy pleading a bunch of cases on Monday morning. One case is a DWI.
It's a dog. The defendant is a rich banker, pillar of the community, charitable organization
type. With one prior DWI conviction. The traffic stop was questionable. The defendant
refused the breath test, and the guy looked pretty good on the video. There are some
tough legal issues. And to top it off, the guy has hired the best DWI lawyer in town. This
lawyer he won't miss a thing. You are lucky to get a plea, even though you had to offer
the courthouse to get it.

        The next case you handle that morning is remarkably similar on paper -- bad stop,
no test, good video, second-offender, and legal issues that could jump up and bite you.
The main difference is that this defendant is John the janitor, and he has hired one of the
lamest lawyers in the courthouse. As far as you know, John's lawyer has never won a
case in his life.

       What's your offer to John?


References:
MR Preamble [6]

Ethics 2000 Preamble [6]

NPS 1.1
NPS 1.3
NPS 68.1

CJS 3-1.2

Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (Defendant has no right to a plea
bargain).
Bordernkircher v. Hayes, 434 U.S. 357, 364 (1978) (If state offers to negotiate, can‟t
premise decisions on unjustifiable standards such as race, religion, or other arbitrary
classifications).




Ethical Dilemmas for Prosecutors            24                           Instructor Outline
                    Variation to Number 3
        This time, you've got two defendants charged with their fourth DWI. Both were
stopped on traffic, didn't blow and look pretty good on the video. Guilty verdicts would
put these guys in the pen. But the facts are weak. The only difference is, one guy was
driving a brand new Mercedes and the other guy was driving a 1975 Impala that is barely
recognizable for all of the bondo patches. And your state has an automobile forfeiture law
that may apply if you can manage to prove up the old DWI priors that these guys have.

       What a surprise: the guy with the Mercedes approaches you with a deal. He will
give up the Mercedes and his driver's license if he can have some probation and alcohol
treatment.


References:
NPS 43.5
NPS 49.1
NPS 49.2
NPS 49.3
NPS 49.4
NPS 68.1




The Purpose of the Scenario.
        This scenario asks the students to stop and think about how they treat defendants
who are charged with similar offenses and have similar criminal histories. There are two
issues here: 1) should the prosecutor treat the defendants differently based on notions of
status in society or contributions to society; and 2) should the prosecutor treat the
defendants differently based on the quality of the lawyer each defendant has hired? No
rule would prevent a prosecutor from trying to hammer John the janitor in court, but
scenario encourages the students to give real thought to developing a consistent approach
to factually similar cases.




Ethical Dilemmas for Prosecutors            25                          Instructor Outline
Instructor Outline:                                     Notes:
Should you take a defendant’s status,
or contribution to society, into
account in your offer to John?

Visual 50: No offer, let's tee it up!

Yes.

1. It is perfectly acceptable to factor
contributions to society into the mix when
making a punishment offer; a jury or a judge
would do so.
2. It is OK to factor in John's personal
situation because it will certainly affect his
ability to make a probation. The banker is
much more likely to be a successful
probationer.

No:

1. Defendants should be based on the facts
of the case alone.
2. If the rich guy gets a break, it is only fair
that the poor guy does too.

Change the facts:

        Now you are comparing the DWI
case of the president of a university and the
DWI case of an 18 year old,
sometimes-employed slacker with a heavy
metal tattoo and a pierced eyebrow.

Should you take the quality of the
lawyer into account when deciding
on an offer to John?




Ethical Dilemmas for Prosecutors                   26    Instructor Outline
Visual 51: Can you ethically take into
account the quality of the defense attorney...

        There are two ways to look at this
problem: are you going out of your way to
hammer John, or are you going out of your
way to give the banker a good deal? How
the students look at the issue will likely
determine their response:

Yes:

1. It's not your fault John hired the guy.
2. Your job as a participant in the system is
to make the cases you can and get the most
you can for the cases. If you can get a lot for
this case, why not?
3. Just because the rich banker got a break
because he has a real smart lawyer doesn't
mean that John and everyone else should
escape what you think is a fair punishment.
4. It is practical and realistic that the clients
of better lawyers are going to end up with
better offers on cases, because those good
lawyers have a better chance of beating us in
court. 5. Think of plea bargaining as a free
(or flea) market -- you get what you can for
each case.

No:

1. It is not fair to penalize John because he
hired a bad lawyer; he should be judged on
the facts of his case.
2. To be fair, offers on cases should be
consistent.
3. You have a duty to John, as a member of
society, to treat him fairly.

Visual 52: Can you ethically take into
account the quality of the defense attorney...




Ethical Dilemmas for Prosecutors                27   Instructor Outline
Useful references:

NPS 68.1(f): "Prior to negotiating a plea
agreement, the prosecution should consider
the following factors: ...sufficiency of the
evidence to support a verdict." (Does this
really help much? A good defense lawyer
generally does mean that the state is going to
get in less evidence, doesn't it?)

Discuss the variation:

        This variation asks the students to
grapple with a forfeiture issue. Many
jurisdictions have ethical rules that prohibit
a prosecutor from using a criminal charge as
leverage in a civil proceeding, however,
those rules would not prohibit the defense
attorney from offering up the assets as part
of a package plea agreement.


Should the prosecutor take the offer
and the Mercedes?


Yes:

1. This may be the best I can do, so why
not?
2. It is punishment for the rich guy to give
up the Mercedes, so it is OK.
3. It is OK to consider the value of the car to
the state in the issue; it can buy a lot of
police equipment.
4. We have to take each case on its own
merits.

No:

1. The rich guy is just buying his way out of
a criminal conviction.
2. It is not fair to the poor guy; hey goes to
jail only because he doesn't have a car to
deal.


Ethical Dilemmas for Prosecutors              28   Instructor Outline
3. Justice is served by making the rich guy
go to jail, just like the poor guy.

Useful references:

NPS 68.1: Notable only because the
availability of a civil forfeiture is not one of
the factors, which a prosecutor should
consider when deciding on a plea
agreement.




Training Tip: Once you get started, make a mental note of a "go-to" person in the
crowd -- someone who seems interested and has answered some questions. If you hit a
silent spot, go to that person for an answer.




Ethical Dilemmas for Prosecutors               29                   Instructor Outline
                         Scenario Number 4
        You are prosecuting a DWI case. It is a no-test. The defendant looks great on the
videotape, even though the officer insists that it's a good tape for the state. The officer
stopped the defendant for going 42 in a 35 zone. You notice that the officer is not a traffic
cop -- he's a narcotics sergeant. He tells you that the defendant is a known drug dealer,
even though the guy doesn't have a criminal record and didn't have any drugs on him
when he was searched incident to his arrest for DWI and his car was inventoried prior to
towing. The officer is adamant that the case be tried, and will most certainly complain to
your superiors if you dismiss it.


References:
MR 3 .1
MR 3.8(a)

NPS 1.1
NPS 43.1
NPS 43.3
NPS 43.6

CJS 3-1.2
CJS 3-3.9(b)




The Purpose of the Scenario.
        This scenario challenges the students to closely examine their motivation for
prosecuting -- are they prosecuting a person, or are they prosecuting a crime? It asks the
student whether they should try to make a weak case because the defendant is a bad
person (even if we can't show all the bad stuff at trial). This scenario also asks the
students to examine their role as independent prosecutors and their relationship to law
enforcement.

         At some point, the students should reflect on a decision to take a weak case to
trial only because they are convinced the defendant is a bad guy. As a practical matter,
many times that decision ends in a less than satisfactory verdict.




Ethical Dilemmas for Prosecutors             30                           Instructor Outline
Instructor Outline:                                 Notes:
Should the prosecutor try the case?

Visual 53: They make the cases...

Yes:
1. It's the cop's job to make the case, it's our
job to try it if we have a shot at winning.
2. If the guy is a bad guy, then it is worth
taking a shot at him.
3. The police officer's motivation is
irrelevant; if it's a crime you try it.

No:
1. There is very little chance of winning; this
is the type of case you'd normally dismiss.
2. The officer's motivations are improper,
the case should be dismissed.
3. The police officers need to learn a lesson
that they can't use weak charges to harass
someone they don't like.
4. The cop's motivation is going to come out
in trial, and that won't be pretty. .

Visual 54: Are we prosecuting the person or
the crime?

Change the facts:
1. The weak DWI case is the same, but this
time the defendant is a notorious parolee. He
was released early from his life sentence for
child molestation because of prison
overcrowding. The officer who stopped him
is on the "Target Offender Unit," and he has
been tailing this guy for weeks.

Visual 55: NPS 68.1




Ethical Dilemmas for Prosecutors               31    Instructor Outline
Useful references:

1. MR 3.1: "A lawyer shall not bring or
defend a proceeding, or assert or controvert
an issue therein, unless there is a basis for
doing so that is not frivolous...".

2. MR 3.8(a): "The prosecutor in a criminal
case shall refrain from prosecuting a charge
that the prosecutor knows is not supported
by probable cause."

3. NPS 42.3(d): "The prosecutor should
exercise discretion in screening for the
purpose of eliminating matters from the
criminal justice system in which prosecution
is not justified or not in the public interest.
Factors which may be considered in this
decision include ...possible improper
motives of a victim or witness."

4. NPS 43.3: "The prosecutor should file
only those charges which he reasonably
believes can be substantiated by admissible
evidence at trial."

5. CJS 3-3.9(d): "In cases which involve a
serious threat to the community, the
prosecutor should not be deterred from
prosecution by the fact that in the
jurisdiction juries have tended to acquit
persons accused of the particular kind of
criminal act in question.

6. Ethics 2000 Rule 3.1: “A lawyer shall not
bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a
basis in law and fact for doing so that is not
frivolous, which may include a nonfrivolous
argument for an extension, modification or
reversal of existing law...”




Ethical Dilemmas for Prosecutors                32   Instructor Outline
                         Scenario Number 5
        You have been investigating a possible intoxication manslaughter case. This is a
tough one. Early one Saturday morning, a sports car broad-sided another car at an
intersection, killing the other driver. The driver of the sports car says his light was green.
Other witnesses aren't sure who was running the light but think that maybe the surviving
driver was "timing" the light to turn green and got into the intersection too early. Three
hours after the wreck, the driver of the sports car had a 0.05 breath alcohol concentration,
and he looked a bit shaky on the videotape. It was hard to tell, because he kept
readjusting the big bandage on his forehead from where his head had hit the windshield.

        Then again, most people figure that your potential defendant would look good on
videotape -- you see, he is the star quarterback for the nationally-ranked local college
football team.

        And did I mention that it has been rough for the sports programs at the school
lately. They have gotten a lot of national attention for all of the bad conduct of the
players, including some major felony arrests and convictions. People have gone to
calling the school the University of Alcatraz.

       So it‟s no surprise that your office is besieged by media, MADD and bunch of
worried alumni.

        So what are you going to do?


References:
MR 3.1
MR 3.8

NPS 1.3
NPS 42.3
NPS 42.4
NPS 43.6

CJS 3-3.9(a)
CJS 3-3.9(b)
CJS 3-3.9(d)




Ethical Dilemmas for Prosecutors              33                           Instructor Outline
The Purpose of the Scenario.
        This scenario builds on the discussion begun in Scenario Number 4. This scenario
asks the students to evaluate a charging decision when the case involves a celebrity. By
the end of the discussion of this scenario, the students should recognize that any decision
they make is likely to be criticized by someone, so they should strive to make a choice
based on their personal standards of conduct.


Instructor Outline:                                                 Notes:
Should the prosecutor file the case?

Visual 56: You bet, I was the kid who
always got beat up in gym class...

Yes:
1. When it comes to public figures, the
public has a right to a trial to determine guilt
or innocence. The public, through a jury,
should make this call.
2. When you have probable cause to proceed
on a case involving a celebrity, you should
go forward because there would be an
appearance of favoritism if you didn't --
practically speaking, there is a different
standard for public officials.
3. It is important that public figures are held
to a high standard of conduct.
4. You have a shot at making the case, and it
is legitimate to send a message to the
community that drinking and driving by
anyone will not be tolerated.

No:
1. You wouldn't normally prosecute this
case, so it would be treating this public
figure differently by charging him.
2. You can't win the case, so that's the end of
the discussion.




Ethical Dilemmas for Prosecutors              34                         Instructor Outline
Change the facts:

1. The potential defendant is a rotten city
councilman what has twice before skated on
fraud charges.
2. The guy is a state senator in the same
party as the DA, and in the past had
nominated the DA for United States
Attorney.

Visual 57: Individual justice for individual
cases...

Useful references:
NPS 1.3: "The prosecutor should at all times
be zealous in the need to protect the rights of
individuals, but must place the rights of
society in a paramount position in exercising
prosecutorial discretion...".



Training Tip: Most of your questions ought to be what's called "overhead/undirected"
questions. That's where you throw the question out for anybody to answer -- "What
should the prosecutor do here; any ideas?" The advantage to such a question is that it
invites everyone to think about the question and participate, and helps you to quickly
identify the people who are willing to talk. The disadvantage is that one student can
dominate if you aren't careful, and people who aren't interested or too shy will not get
involved. For what to do when that happens, see the next tip!




Ethical Dilemmas for Prosecutors               35                        Instructor Outline
                         Scenario Number 6
         You are handling an intoxication manslaughter case. The case is a fairly weak
case; it‟s one of those cases that is going to have to get better during trial for you to win.
But, the defendant is willing to plead for a reduction and some light jail time. You decide
to make the offer, and the defendant, through his attorney, accepts. A plea date is set a
couple months off.

Some variations on what happens next:

            1. A week later you get an NCIC report. The defense attorney had told you
that his guy was clean, but now it turns out he's got three prior DWI's.

          2. A week after the defendant accepted your offer, you get an NCIC report.
You had requested it at the beginning of your investigation, but had forgotten about it and
made the offer before it came in. Wow. The defendant has three prior DWI's in another
state.

            3. A week after the defendant accepts your offer, you get a telephone call
from a witness who says that he had heard about the case, and was at the scene of the
accident. He didn't tell the police because he thought they had it under control, but he saw
the accident and actually pulled the defendant from his wrecked car. As the witness was
doing that, the defendant murmured: "Ah hell, I knew I was too drunk to drive.. I should
have learned from the last time...". Your case just got a whole lot better.

             4. No new criminal histories or facts, but you just can't sleep at night. You are
having serious misgivings about your offer. You offered that jerk some light-running jail
time, for crying out loud. Even though you told the victims family about your offer up
front, they naturally are very upset. What kind of justice is that? Better a "not guilty" than
a gift of a peal bargain. You feel like you just caved in. What kind of a weak-kneed
prosecutor are you, anyhow?

       So, do you withdraw your offer in any of these situations?


References:
NPS 69.1
NPS 69.3

CJS 3-4.2




Ethical Dilemmas for Prosecutors              36                           Instructor Outline
The Purpose of the Scenario.
        This scenario invites the students to discuss a matter of personal ethics -- the
decision about whether or not to honor a plea agreement. Courts generally will force a
prosecutor to honor a plea offer if the defendant has detrimentally relied on the offer, but
apart from that the ethical rules appear to give prosecutors quite a bit of "wiggle room."
This scenario asks the students to think about their own personal rules for withdrawing
offers. They will be balancing a potential loss of personal honor with what is best for the
client, with what is best for the state, and with how this will affect your future business
with the defense bar.


Instructor Outline:                                                   Notes:
1. Should you withdraw the offer
when you find out the defense
attorney misled you?

Visual 58: Deal‟s off...

Yes.

1. There is no duty to honor the offer when
it was based on a misrepresentation by the
defendant.

2. Now the prosecutor get new
information on the defendant's
criminal record -- should the offer be
withdrawn?

Yes:

1. The offer was based on the defendant not
having a criminal history; the defendant
knew about his history, so he shouldn't be
surprised that the offer is withdrawn.
2. This is new information that you didn't
have before.
3. There is no "due diligence" standard here;
the important thing is that you found out
before it was too late.


Ethical Dilemmas for Prosecutors              37                          Instructor Outline
No:

1. You chose to make the offer without the
NCIC report, so you should honor the offer.
2. It's your own negligence that led to the
offer, and not any doing of the defendant.

3. Now that the prosecutor has a
better shot at winning the case, are
all bets off?

Visual 59: All‟s fair in love and war...


Yes:
1. The offer was predicated on the difficulty
in making the case; now that the case is
better, it should be tried.

2. The defendant is always free to back out
of a plea at the last second if his case gets
better, so why can't the state do the same as
long as it doesn't injure the defendant's due
process rights?

No:
1. The defendant didn't hide anything and is
willing to admit guilt. The state made an
offer for that admission of guilt, so it should
stick with it.

4. On second thought, that offer was
simply terrible; can't you just flat
change your mind?

Yes:

1. Your client is the state; if the offer is not
in the best interest of the client, then you
should withdraw it.



Ethical Dilemmas for Prosecutors                   38   Instructor Outline
No:

1. You should not withdraw an offer based
on a personal change of heart.

Useful references:

1. NPS 69.1: "...the prosecution may advise
the defense of the position prosecution will
take concerning disposition of the case,
including a sentence that the prosecution is
prepared to recommend to the court based
upon present knowledge of the facts of the
case and the offender (including criminal
history). If the facts known to the
prosecution change materially prior to
sentencing, prosecution is not bound by such
representation."

2. CJS 3-4.2(c): "A prosecutor should not
fail to comply with a plea agreement, unless
a defendant fails to comply with a plea
agreement or other extenuating
circumstances are present."




Training Tip: If you have one person dominating the answers, or your crowd is too
quiet, change the form of you question to what's called a "pre-directed" question: "John,
what do you think about this problem?" Pick a person who has shown an interest and
appears ready to talk, even if they have been quiet up until then. That may help
"jump-start" the group.



Ethical Dilemmas for Prosecutors            39                          Instructor Outline
                        Scenario Number 7
        You are handling an indecency with a child case. The case is keeping you up at
night. The police first learned of the allegations when a woman came in to report that her
seven-year-old daughter had accused her father of touching her in an inappropriate
manner. You learn that: 1) the mother and father are in the middle of a bitter divorce and
child custody dispute; 2) the mother herself had unresolved issues concerning past abuse
she had suffered from a cousin; 3) the abuse is alleged to have occurred in a hot tub while
four other adults were in the tub with the kids; 4) the child is slightly mentally
handicapped and has a difficult time articulating in a consistent manner the nature of the
abuse; 5) the original outcry came in response to questioning by the mother about
whether the father had touched the daughter in an inappropriate manner; and 6) the
defendant is a church-going businessman with no criminal record and a good reputation
in the community.

       Obviously, even with all of these circumstances, the abuse could have occurred
exactly as the victim says. You just don‟t know.

What do you do?




References:

MR 3.8

NPS 1.1
NPS 42.3
NPS 43.6

CJS 3-3.9(b)




Ethical Dilemmas for Prosecutors            40                          Instructor Outline
The Purpose of the Scenario.
         This scenario poses a most difficult question to prosecutors: what do you do if
you are personally not sure the defendant is guilty? If the students haven't yet confronted
this problem, they most certainly will. This situation invites the students to examine their
role as the attorney for the people, and how they do their duty in these tough situations.


Instructor Outline:                                                   Notes:
Should you prosecute the case?

Visual 60: It takes a good prosecutor to
convict a guilty person...

Visual 61: Must you personally believe a
defendant is guilty...

Yes:
1. The prosecutor's role is as an advocate for
the state; there is probable cause.
2. The determination of guilt is the jury's job
-- if the jury believes the state's witnesses,
the defendant will be convicted.

No:
1. The prosecutor's must to be sure that
innocent people aren't wrongfully convicted;
when in doubt, it is the prosecutor's job to
step in and exercise the discretion to end the
prosecution.
2. Practically speaking, a prosecutor who is
unsure of guilt won't be able to convince a
jury of guilt.
3. A prosecutor who is unsure of guilt can
not honestly go before a jury and ask that
the jury find a person guilty.




Ethical Dilemmas for Prosecutors              41                          Instructor Outline
Change the facts:
1. The case is a plain-vanilla, no test,
defendant looks good on the video, DWI.


Useful references:

1. NPS 1.1: "The primary responsibility of
the prosecution is to see that justice is
accomplished".

2. NPS 42.3(a): "The prosecutor should
exercise discretion in screening for the
purpose of eliminating matters from the
criminal justice system in which prosecution
is not justified or not in the public interest.
Factors which may be considered include
...doubt as to the accused's guilt."

3. CJS 3-3.9(b)(i): "...The prosecutor may
in some circumstances and for good cause
consistent with the public interest decline to
prosecute, notwithstanding that sufficient
evidence may exist which would support a
conviction. Illustrative of the factors which
the prosecutor may properly consider in
exercising his or her discretion are ...the
prosecutor's reasonable doubt that the
accused is in fact guilty..."




Training Tip: Don't give "The Answer"! Invariably, one or two students don't like the
idea that there are few hard and fast rules in this area, and will press for an easy solution.
It's not necessarily important what the instructor would do in a given situation. It's more
important that the students understand that they will need to give some thought to these
issues.




Ethical Dilemmas for Prosecutors              42                            Instructor Outline
                        Scenario Number 8
        You are handling a DWI case involving serious bodily injury. The defense
attorney is a friend of the judge. During docket call, the attorney goes back into chambers
with the judge. Later that morning, while the judge is on the bench, he calls you aside for
a chat. He casually mentions that your DWI-serious bodily injury case doesn't sound that
good, and that the state's key witness doesn't sound all that credible. And what's all this
about the victim being drunk as well? The judge asks you what you think.


References:
MR 3.5
MR 8.3

NPS 23.3
NPS 23.6
NPS 23.7
NPS 25.5
NPS 25.6




The Purpose of the Scenario.
        This scenario is intended to confront the students with the age-old problem of ex
parte communications. In many jurisdictions, it seems that ex parte communications are
an accepted part of doing business. But are prosecutors ethically free to "fight fire with
fire?" What other remedies are there?


Instructor Outline:                                                  Notes:
Since the defense attorney has "ex
parted" the judge, should you
respond in kind?

Visual 62: The rules prohibit me...




Ethical Dilemmas for Prosecutors            43                           Instructor Outline
Yes:

1. As a practical matter, ex parte is the way
some courts operate, and if everyone
recognizes the practice, there is no problem.
2. You have no other choice but to talk to
the judge in this situation; a recusal of the
judge is a drastic remedy and a grievance
against the defense attorney wouldn't do any
good.

No:
1. The defense attorney's breach of an
ethical rule does not authorize the prosecutor
to breach it.
2. It is important not to encourage or foster
deals "behind closed doors."

Change the facts:
1. You are now prosecuting in the court of
an ex-prosecutor judge. We all know the
type; it's the guy who says "Are we ready?"
on Monday morning. The court coordinator
regularly gives you tips on which case will
go to trial and will pass along things you say
about your cases over coffee to the judge. Is
this just "home field advantage?" How far
can you go?

Useful references:

1. MR 3.5(a) and (b): "A lawyer shall not
...seek to influence a judge...[or]
communicate ex parte with such a person
except as permitted by law...".

2. MR 8.3(a): "A lawyer having knowledge
that another lawyer has committed a
violation of the Rules of Professional
Conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects, shall
inform the appropriate professional
authority."


Ethical Dilemmas for Prosecutors             44   Instructor Outline
3. MR 8.3(b): "A lawyer having knowledge
that a judge has committed a violation of
applicable rules of judicial conduct that
raises a substantial question as to the judge's
fitness for office shall inform the appropriate
authority."

4. NPS 23.3: "Counsel should not seek to
unfairly influence the proper course of
justice by any relationship, communication,
or pressure upon the court."




Training Tip: Honor every answer with some sort of response. If you don't understand
the answer, don't ignore it. Ask the student to explain. If even then you don't understand,
or if the student is just out in left field somewhere, you may need to use a dilatory tactic.
Try something like, "that's a good idea, hold that thought and I want to get back to it in a
minute." That way, the student is not embarrassed for having volunteered a thought, and
you aren't embarrassed for not having understood the student's point!




Ethical Dilemmas for Prosecutors              45                           Instructor Outline
                         Scenario Number 9
         You are prosecuting a DWI and resisting arrest case. In reviewing the file, you
see questionable probable cause for the arrest, and perhaps some excessive force in the
arrest -- the book-in photo shows a lot of bruising on the defendant's face.

       You speak to the officers about these issues, and the subject of civil liability
comes up. Later, the officers come to see you and request that you dismiss the charges in
exchange for a stipulation of probable cause and a liability waiver.



References:
NPS 42.3(o)
NPS 43.3
NPS 43.4
NPS 43.5
NPS 43.6(p)
NPS 68.1 (o)

CJS 3-3.9(g)

Town of Newton v. Rumery, 480 U.S. 386 (1987) (Covenant not to sue for alleged
violations of constitutional rights in exchange for dismissal of criminal charges not
against public policy).


The Purpose of the Scenario.
        This scenario involves an issue that arises with some frequency. It raises some
real problems for prosecutors, because even the specter of excessive force makes the
entire prosecution questionable. On the other hand, the civil liability concerns of the often
blameless officers are entirely legitimate. So what should prosecutors do here?

(Note: some jurisdictions may have specific rules or case law addressing this issue, so
check yours out.)




Ethical Dilemmas for Prosecutors             46                           Instructor Outline
Instructor Outline:                                 Notes:
Should you offer the defendant a
dismissal in exchange for a
stipulation of probable cause and a
liability waiver?

Visual 63: Hey, the cop is supposed to win
the fight!


Visual 64: We're going to trial...


Yes:

1. The case isn't very good anyhow, and the
officers won't make very good witnesses;
the state might as well get what it can.
2. The case isn't very good, but if the
prosecution forces it to trial the police
officers may make great witnesses -- too
good, in fact, if you get the drift. Best not to
put the officers in that position.
3. There is nothing wrong with an attorney
for the state seeking to protect good police
officers from bogus civil suits filed by
criminal defendants.

No:

1. The whole thing is entirely too coercive;
the defendant has no choice but to agree and
maybe the police should be sued in this case.
2. If the criminal case is bad, it should be
dismissed on its own merits and the issue of
civil liability should be handled separately.
3. It is not the prosecutor's job to protect the
police officer from civil liability.
4. Practically, if we start caving in on our
criminal cases every time the defense yells
"civil rights," such allegations will become a
common defense tactic.


Ethical Dilemmas for Prosecutors               47    Instructor Outline
Change the size of the jurisdiction:

1. You prosecute in Metropolis, and have
never even met the officer in question.
2. You prosecute in Smallsville, and have
coffee with the officer every morning.

Useful resources:

1. NPS 43.5: "The prosecutor should not
file charges for the purpose of obtaining
from a defendant a release of potential civil
claims against victims, witnesses, law
enforcement agencies and their personnel, or
the prosecutor and his personnel."

2. NPS 68.1(o): "Prior to negotiating a plea
agreement, the prosecution should consider
the following factors: ...the willingness of
the defendant to waive (release) his right to
pursue potential civil causes of action
arising from his arrest, against the victim,
witnesses, law enforcement agencies or
personnel, or the prosecutor or his staff or
agents, where such willingness is concurred
in and recommended by the defendant's
counsel."

3. CJS 3-3.9(g): The prosecutor should not
condition a dismissal of charges, nolle
prosequi, or similar action on the Accused's
relinquishment of the right to seek civil
redress unless the accused has agreed to the
action knowingly and intelligently; freely
and voluntarily, and where such waiver is
approved by the court."

Training Tip: The last type of question you may consider using is what's called an
"overhead/directed" question -- "What do you think of that….Susan?" The advantage of
directing a question to a particular person after you have thrown it up for grabs: if you
don't have a taker on the general question, you will have a chance to scan the crowd and
see if there is someone who appears interested in answering, but is just too shy. The
possible disadvantage: if one student is dominating the discussion, you may not have time
to direct the question to someone else before that student pipes up.


Ethical Dilemmas for Prosecutors               48                      Instructor Outline
                       Scenario Number 10
        You are pretty new at this DWI stuff, but you‟ve always been pretty good on your
feet, too. You didn‟t expect the Court to reach the DWI case with the blood evidence, but
you think the right people have been subpoenaed, and you have that beat up old yellow
pad that has been handed down through the ages with all of the predicate questions on it.

       When the court asks, what‟s your announcement?



References:
MR 1.1
MR 1.3




The Purpose of the Scenario.
       This scenario is a not-so-subtle reminder that, just because a prosecutor doesn't
have a client sitting at council table during the trial of a "run of the mill" DWI case, the
prosecutor still has a client that is counting on good representation by a prepared lawyer.


Instructor Outline:                                                   Notes:
Is it proper for the prosecutor to,
announce "ready" without, having
even looked into putting blood
evidence on in court?

Visual 65: Geronimo!




Ethical Dilemmas for Prosecutors             49                           Instructor Outline
Yes:

1. As a new prosecutor, you often have no
choice as a practical matter but to "fly by the
seat of your pants."
2. You've got the written materials, so you
are adequately prepared.

No:

1. No lawyer is adequately prepared without
having talked to the witnesses or without
having planned out the introduction of
complex evidence.
2. The people expect good representation,
even if it is a DWI.

Useful resources:

1. MR 1.1: "A lawyer shall provide
competent representation to a client.
Competent representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation."
2. MR 1.3: "A lawyer shall act with
reasonable diligence and promptness in
representing a client."




Training Tip: Be sure to prepare some visuals that are tailored to the ethical rules of
your own jurisdiction, or play on local personalities or cases. That is bound to help make
the session more meaningful to the students.



Ethical Dilemmas for Prosecutors              50                        Instructor Outline
                        Scenario Number 11
        A public official has just been arrested for DWI, and after putting up quite a fight
when the cuffs came out, resisting arrest. The defendant's attorney goes straight to the
press. He says that he knows that his client is not guilty, and that the police department is
conspiring with the DA's office in a political war against his client. He claims that the
prosecutor is acting unethically by prosecuting the case, and that he will demand an
investigation into the entire affair. He then goes into great detail about his client's version
of the case.

        The press asks for your version of the story and for your comments.



References:
MR 3.5(c)
MR 3.6
MR 3.8

NPS 33.1
NPS 33.2
NPS 34.2
NPS 34.3
NPS 34.1

Shepard v. Maxwell, 384 U.S. 333 (1966).



The Purpose of the Scenario:
        This scenario asks the students to grapple with the issue of pre-trial publicity. The
problem is not so much what the prosecutor can say about the case in the first instance;
the problem arises when the prosecutor has the overwhelming urge to reply to untrue
statements and accusations made by the defense team. The ABA Model Rules and the
National Prosecution Standards have provisions that seem to allow a lawyer to rebut in
the press the untrue statements of an opponent [MR 3.6(c) and NPS 34.3], but most state
ethics rules do not have such a provision. This scenario encourages prosecutors to
consider the consequences of unleashing a media barrage on the defense team.




Ethical Dilemmas for Prosecutors              51                            Instructor Outline
Instructor Outline:                                  Notes:
So you have been attacked by the
defense. Can you strike back?

Visual 66: That guy is a gutter snake...

 Yes:

1. You should always correct false
impressions, and can rebut personal attacks.
2. Because the defense has attempted to
pollute the jury pool with an untrue version
of the facts, it is proper to correct the factual
errors in the defense version.
3. As a matter of self-protection, you must
respond or your jury pool will become
tainted beyond redemption.

No:

1. It is never proper to discuss the facts of a
case before the trial.
2. If the defense acted improperly, a
grievance is the proper recourse.
3. By responding, you lend credence to the
defense statements.

What are some creative, yet clearly
ethical responses:

1. "I'd love to respond, but the rules of
ethics prohibit me from doing that. I hope
you come to the trial."
2. "I'd love to respond, but that wouldn't be
fair to the defendant. I hope to see you at
the trial."
3. Do you ever say "No comment?"




Ethical Dilemmas for Prosecutors                52    Instructor Outline
Useful resources:

(Note: many jurisdictions do not have rules
such as the following, which appear to
authorize comments in response to improper
defense comments.)

1. MR 3.6(c): "Notwithstanding paragraph
(a), a lawyer may make a statement that a
reasonable lawyer would believe is required
to protect a client from the substantial undue
prejudicial effect of recent publicity not
initiated by the lawyer or the lawyer's client.
A statement made pursuant to this paragraph
shall be limited to such information as is
necessary to mitigate the recent adverse
publicity."

2. NPS 34.3: "Standards 34.1 and 34.2 do
not preclude the prosecutor from making
reasonable and fair responses to comments
of defense counsel or others."




Training Tip: If you can, schedule this training for the session before lunch! Audience
participation is crucial to its success, and it is harder to get people actively involved right
after lunch, or when they are ready to end for the day.




Ethical Dilemmas for Prosecutors              53                            Instructor Outline
                   Variation to Number 11
        On T.V. the next day, the outraged defense attorney, in front of a mob of cameras,
announces his client‟s innocence. He proclaims that every person by God has the right to
resist an unlawful or unreasonable arrest. (You know that‟s not right – a person may not
resist an unlawful arrest. A person may use force to the extent necessary to defend against
an officer‟s unreasonable use of force during an arrest or search, but that‟s very
different.)

The T.V. station is on the line. Now they want your response. What, if anything, do you
say?



References:
MR 3.5(c)
MR 3.6(c)
MR 3.8(e)

Ethics 2000 MR 3.8(f)

NPS 33.1
NPS 33.2
NPS 34.1
NPS 34.2
NPS 34.3




The Purpose of the Scenario:
        This variation is designed to highlight the difference between discussing legal
issues and factual issues related to a particular case. Prosecutors have a continuing duty
to educate the public on important legal affairs, and should consider doing so when it
would not improperly interfere with the fair trial of a particular defendant. This scenario
may present a situation in which it is appropriate for the prosecutor to inform the public
about the law – without speaking to particular fact issues in a particular case.




Ethical Dilemmas for Prosecutors            54                           Instructor Outline
Instructor Outline:                                Notes:
So the defense attorney has
misinformed the public about the
law? Can you set him straight?

Visual 67: What a shocker...

 Yes:

1. You should always correct false
statements about the law.
2. The public could actually be harmed by
the attorney‟s misstatement about their legal
rights in this area.


No:

1. Any statement could be seen as a
comment on the case in issue.

Useful resources:

1. MR 3.6(c): "Notwithstanding paragraph
(a), a lawyer may make a statement that a
reasonable lawyer would believe is required
to protect a client from the substantial undue
prejudicial effect of recent publicity not
initiated by the lawyer or the lawyer's client.
A statement made pursuant to this paragraph
shall be limited to such information as is
necessary to mitigate the recent adverse
publicity."

2. NPS 34.3: "Standards 34.1 and 34.2 do
not preclude the prosecutor from making
reasonable and fair responses to comments
of defense counsel or others."




Ethical Dilemmas for Prosecutors              55    Instructor Outline
                       Scenario Number 12
        You are trying a youthful first offender for intoxication manslaughter. You give
what you think is a good little closing argument, then sit down to listen to the defense
attorney. He opens by saying that, in his experience in the courthouse, this is one of the
weakest cases he has ever seen, and that nobody is ever convicted on such a weak case.
He goes on to say that as a former prosecutor, he knows that the only reason you are
prosecuting it is because of an office policy adopted because of pressure from interest
groups like MADD. In fact, he says, you the prosecutor probably don't even think the guy
should be found guilty, but you are just following policy.

       What can you do?

References:
MR 3.1
MR 3.4(e)
MR 3.5

NPS 85.1

CJS 3-5.6(b)
CJS 3-5.9




The Purpose of the Scenario.
         The purpose of this scenario is to encourage prosecutors, outside the heat of
battle, to think about the practical and ethical ramifications of their courtroom conduct. In
the area of responding to the improper argument of defense counsel, the black letter law
may vary. For instance, in some jurisdictions, once the defense opens the door to an
improper area, the prosecution is allowed to respond in kind. In others, an improper
defense argument does not open the door for the prosecution. But in either case, how far
should the prosecutor go to win the case?




Ethical Dilemmas for Prosecutors             56                           Instructor Outline
Instructor Outline:                                 Notes:
So the defense attorney is way
outside the record -- does the
prosecutor respond in kind?

Visual 68: Start clucking like a chicken...

Yes:

1. You have no choice; the defense
statements will affect the jury.
2. The trial is a contested event, and there is
nothing wrong with the state's attorney
aggressively pursuing a just result.
3. The prosecutor's objections have not
undone the damage, if it is error it is invited.

No:

1. It is unethical to "strike" at a defendant
because of the conduct of his lawyer.
2. The defense's unethical conduct does not
authorize the state's unethical conduct.
3. As a practical matter, it is better for the
state to just object to show the jury the
defense is-being unfair, and to stick to its
case.
4. You have no ethical choice but to stick to
the facts and file a grievance later.
5. As a practical matter, you have got to be
careful not to go too far -- you could cause a
mistrial or reversal of the case.

Useful resources:

MR 3.4(e): "A lawyer shall not ...in trial,
allude to any matter that the lawyer does not
reasonably believe is relevant or that will
not be supported by admissible evidence,
assert personal knowledge of facts in issue
except when testifying as a witness, or state



Ethical Dilemmas for Prosecutors               57    Instructor Outline
a personal opinion as to the justness of a
cause, the credibility of a witness, the
culpability of a civil litigant, or the guilt or
innocence of an accused...".




Training Tip: Don't get side-tracked by a student's war stories! Offer to discuss an
irrelevant problem with them after the session, but keep control of the lesson.




Ethical Dilemmas for Prosecutors                   58                    Instructor Outline
                       Scenario Number 13
       You have just finished trying a DWI case. The defendant was a popular athlete.
You figure that the judge must have season tickets -- he overruled all of your objections,
he suppressed the defendant's incriminatory statements and the Intoxilyzer results, and he
wouldn't even let you make a proper plea for law enforcement in your closing argument.
You are convinced that he would have kicked your dog if it had been in the courtroom.

       But you prevail. Then the judge gives the guy a minimal probation, and does
everything except ask for an autographed ball. When you step into the hallway, the press
meets you and asks what you think of the judge's behavior.


References:
MR 8.2

NPS 6.5(c)
NPS 33.1
NPS 33.2
NPS 34.1
NPS 35.1

CJS 3-5.10




The Purpose of the Scenario.
        This scenario invites the students to discuss the appropriate public response when
the state has been treated unfairly by the court. The students are encouraged to discuss the
ethical limits of such a response, the purpose of any proposed public response to the
perceived injustice, and how that response may be viewed by the general public.




Ethical Dilemmas for Prosecutors            59                           Instructor Outline
Instructor Outline.                                  Notes:
The judge was outrageous - so can
you blast him in the press?

Visual 69: I am disappointed in the
outcome...

Yes:
1. The public has a right to know that the
judge is incompetent and not fit to serve.
2. The judge needs to know that you will not
stand for his behavior.

No:
1. In the paper it looks like the state won the
case, so no one will understand the fuss.
2. Anything you say will just look like
whining.
3. The ethical considerations limit comments
to the qualifications of the judge, not simply
attacks because you didn't like a ruling.

Useful resources:
1. MR 8.2(a): "A lawyer shall not make a
statement that the lawyer knows to be false
or with reckless disregard as to its truth or
falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or
public legal officer, or of a candidate for
election or appointment to judicial or legal
office."

2. NPS 6.5(c): "Counsel should at all times
display proper respect and consideration for
the judiciary, without foregoing the right to
justifiably criticize individual members of
the judiciary."




Ethical Dilemmas for Prosecutors                60    Instructor Outline
                       Scenario Number 14
        You have just finished trying an intoxication manslaughter case in which two
people died. You were able to prove by blood that the defendant had a .23 alcohol
concentration at the time of the accident; the defendant put on a surprise expert to say that
blood that sits in a patrol car trunk for 3 hours will ferment! You tore this bogus defense
to shreds. At least you thought you did; the jury comes back with a not guilty after 2
hours. You are mystified.

         The press asks for your comments.


References:
MR 3.5
MR 4.4

NPS 33.1
NPS 33.2
NPS 35.2

CJS 3-5.10



The Purpose of the Scenario.
         This scenario continues the discussion begun in Number 13 about comments after
the trial. This time, the issue concerns what comments can be made about a jury verdict.
Many jurisdictions have ethical rules that severely restrict the ability of attorneys to
comment on the work of a jury. The discussion of this scenario should encourage the
students to be very circumspect about criticizing the jury's verdict.



Instructor Outline:                                                   Notes:
The jury was out in left field - so can
you blast them?




Ethical Dilemmas for Prosecutors             61                           Instructor Outline
 Yes:

 1. If the jury shirked its responsibility to
properly weigh the evidence, the public
should know it.

No:

 1. The jury looked at the evidence and
voted against the state; any comment would
look like whining.
 2. Any disparaging comments would tend to
discourage future jurors from wanting to
participate.
 3. Remember, the jury was chosen by both
sides.
 4. The defendant just got acquitted in court.
It would be wrong, if not costly in terms of
liability, to continue to protest his guilt.

Visual 70: The people have spoken.

Useful resources:

1. MR 4.4: "In representing a client, a
lawyer shall not use means that have no
substantial purpose other than to embarrass,
delay, or burden a third person...".




Training Tip: Remember to present the scenarios aloud. Don't let any silence set in -
your students may drift off!




Ethical Dilemmas for Prosecutors                62                   Instructor Outline
                        Scenario Number 15
        You are handling a DWI involving an accident. You have a victim that suffered
some serious injuries, but he is recovering. The defendant has a long history of driving
while intoxicated, and prison terms to prove it. He looks like one of those guys who is not
going to stop drinking and driving. He will surely get a prison term for this latest case.

         The victim comes to you and asks you to dismiss the case. You see, he wasn't hurt
all that bad and the defendant has promised to pay all of his medical bills, but won't be
able to if he is convicted and loses his job.


References:
NPS 1.3
NPS 26.1
NPS 68.1


The Purpose of the Scenario.
        The purpose of this scenario is to encourage the students to examine the
prosecutor's relationship with the victim. To what extent does the prosecutor "represent"
the victim? Are the victim's interests always the same as the State's interests? How does
the prosecutor balance these competing interests?


Instructor Outline:                                                        Notes:
At the request of the victim, should
you dismiss the case?

Visual 71: Rats, I took this job...

Yes:

(It is doubtful that anyone would seriously
entertain a dismissal here...)

No:

1. Protection of society in this situation is of
paramount importance.


Ethical Dilemmas for Prosecutors              63                        Instructor Outline
Change the facts:

1. Now assume that the wreck in question is
a minor fender-bender and the DWI is a
weak case. The defendant is willing to fix
the victim's car, and the victim wants the
case dismissed if his car is fixed. Now
should the prosecutor consider the deal?

2. Now change the type of case. Suppose it
is a decent-sized employee theft case, and
the defendant is willing to pay the
shopkeeper back if the shopkeeper
dismisses. Now the shopkeeper, needing the
cash to stay in business, desperately wants
the money back. Now what should the
prosecutor do?

Useful resources:
1. NPS 1.3: "The prosecutor should at all
times be zealous in the need to protect the
rights of individuals, but must place the
rights of society in a paramount position in
exercising prosecutorial discretion in
individual cases...".




Training Tips: Put some time into making good, simple, visual aids. A good overhead
or PowerPoint slide on your computer screen can be easily read by the naked eye from
ten feet away. Use no more than two different fonts, and never use all capital letters
(that's too hard to read).




Ethical Dilemmas for Prosecutors               64                      Instructor Outline
                       Scenario Number 16
        You are sitting around with some friends one evening, and the conversation turns
to driving while impaired and what you should do if you are arrested. You know from
experience that if you take the breath test and pass it that the cops will probably let you
go, but that if you blow and fail the chances of conviction go way up. You also know
that most not guilty verdicts come in cases in which the defendants refused to do any
exercises and refused to take the Intoxilyzer.

       Your friends want your advice.



References:
MR 3.8 Comment [1]

NPS 33.1


The Purpose of the Scenario.
        The purpose of this scenario is to focus the participant on the tension between the
duties and responsibilities of the profession and other potentially conflicting loyalties,
such as those to friends and family. In most jurisdictions, defendants have a better
chance of escaping a conviction if they refuse all tests. Even if it means some sort of
license suspension, defense attorneys in many jurisdictions advise folks to politely refuse
any sobriety tests. So, do you as a prosecutor tell people about this way of lessening the
chances of conviction?


Instructor Outline:                                                         Notes:
What do you tell your friends?

Visual 72: I really can‟t say...




Ethical Dilemmas for Prosecutors            65                           Instructor Outline
Tell them how it works...it’s better
not to take the test:
1. It‟s the truth, so why not?
2. It‟s the same advice they would get from
anyone else in the courthouse.
3. Prosecutors have First Amendment
rights, too.

Don’t tell them:
1. They are seeking “inside” information.
2. You have loyalty to the state and to the
cops who do the work.
3. Practical issue: what if your friend gets
stopped and tells people that she refused
based on your advice?
4. What if this gets out...how can you argue
in court that defendants should cooperate
with the police?
5. What are the consequences if the cops
find out you are giving such advice?

Notes:
        Don‟t let the participants off the
hook with a soft-soap answer like “I would
tell my friends not to drink and drive.”
Heck, you and your friends are already in a
bar, and they would probably press you for
an answer.

       Check out scenario Number 30.
That scenario will take this issue to it‟s
ultimate – what would the participant do if
stopped in some possible state of
intoxication?




Ethical Dilemmas for Prosecutors              66   Instructor Outline
Useful resources:
1. MR 3.8, Comment 1: “a prosecutor has
the responsibility of a minister of justice and
not simply that of an advocate.”

2. NPS 33.1: “The prosecutor should strive
to protect both the rights of the individual
accused of a crime and the right of the
public to know in criminal cases.”




Ethical Dilemmas for Prosecutors              67   Instructor Outline
                       Scenario Number 17
        You are getting ready to pick a jury on a DWI case. Low and behold, you look
out at the panel and see Jane Smith. You‟ve been friends with Jane for 26 years. In fact,
her husband was in your wedding party and was your DA‟s campaign treasurer during the
last election. When the judge comes in, he asks the panel a general question: “This is a
small county, so you‟ll probably know the assistant DA or the DA, but is anyone on the
panel so close to the assistant DA or DA that their relationship would affect your
deliberations or verdict in this case?” Nobody on the panel says anything. Later the
defense attorney asked if there was anything else that would make it hard for a juror to be
fair. No one spoke up.

       Do you up your friendship with Jane?



References:
MR 3.3
MR 3.4
MR 3.5

NPS 1.1
NPS 6.5


Armstrong v. State, 897 S.W.2d 361 (Tex. Crim. App. 1995).


The Purpose of the Scenario.
        The purpose of this scenario is to encourage the participant to examine the rules
concerning candor towards the tribunal and the duty of fairness to the opposing counsel
and the defendant. As an advocate, just how close is the participant willing to cut it? Are
there other ethical and practical solutions?




Ethical Dilemmas for Prosecutors            68                          Instructor Outline
Instructor Outline:                                    Notes:
Is the failure to inform the judge
unethical?

Visual 73: Keep your mouth shut...

Yes:
1. The judge and defendant may have been
mislead by the juror‟s statement that she
could be fair.
2. It may not be unethical under the rules,
but when the judge finds out you will lose
credibility.
3. The rules require candor, and you are on
notice that the juror probably does indeed
have a bias.

No:
1. The juror said she could be fair, and you
don‟t know otherwise.
2. No one asked her the right question, so
you don‟t have to do the defense attorney‟s
job.

Practical issues:
         At some point, this is likely to come
out, and when it does you can guarantee you
will litigate it in a motion for mistrial, or
even a later claim of ineffective assistance
of counsel. (That is exactly what happened
in the Armstrong case, although the Court
eventually held that the prosecutor‟s conduct
was not illegal). So one solution may be to
bring it out in front of the jury to
demonstrate fairness.




Ethical Dilemmas for Prosecutors               69   Instructor Outline
Useful resources:
1. MR 3.3: “A lawyer shall not knowingly
make a false statement of material fact or
law to a tribunal...”.

2. NPS 6.5: “Counsel should proceed with
candor, good faith, and courtesy in all
relations with opposing counsel...”.




Ethical Dilemmas for Prosecutors             70   Instructor Outline
                        Scenario Number 18
        Your best friend has just been summoned for jury duty. Your district judge is
pulling a jury pool for a capital case in which the state will be seeking death. Your friend
doesn‟t want to serve on the panel because the trial will take a few weeks, and calls you
up to ask how to answer the questions to get off the panel.



References:
MR 3.5

NPS 23.3


The Purpose of the Scenario.
        The purpose of this scenario is to examine the ethical rules concerning contact
with prospective jurors. The Model Rules make it clear that a lawyer shall not seek to
influence such a person, but is there a difference if the person has not yet been called for
jury duty?



Instructor Outline:                                                          Notes:
Can you answer the question?

Visual 74: Tell her to say...

Yes:
1. As long as you don‟t tell her to lie, you
can tell her to voice her opinions, honestly
held, that will get her off the panel.
2. Since she‟s your friend, she is going to
get knocked off anyhow...tell her to
volunteer your friendship.




Ethical Dilemmas for Prosecutors               71                        Instructor Outline
No:
1. Anything you say will come back to
haunt you.
2. If it is not considered “influence,” it will
sure be considered an ex parte
communication.

Change the facts:
         What if your friend hasn‟t been
called for jury duty, but is just curious about
how to get off of a panel if ever called?
There is no rule that prevents such a
discussion, but as a practical matter
prosecutors know that folks who have
served on juries have found it to be a good
experience, and as officers of the court we
are probably under a duty to encourage such
service. Obviously, however, we should
always encourage potential jurors to be
completely candid with the court in the jury
selection process.

Useful resources:
1. MR 3.5: “A lawyer shall not seek to
influence a judge, juror, prospective juror or
other official by means prohibited by law...”.




Ethical Dilemmas for Prosecutors                  72   Instructor Outline
                       Scenario Number 19
        You are handling a first-offender auto theft case. The defendant is a high school
student who was watching a teacher‟s house while the teacher was on vacation. One
night the kid helped himself to the teacher‟s beer, and then the teacher‟s car to go joy
riding. It was fun, too, up until the time he missed a curve and smashed up the car and a
city sign (one of those nice ones with flowers around it and all). Nobody was hurt, but he
got caught and the police filed a DWI and an auto theft case. The DWI is weak and
needs dismissing. The teacher doesn‟t want to make a big deal of the theft, and neither
does the city. Both of them are quite happy to have the case dismissed as long as the kid
pays restitution. It will cost about $2,500 to fix the sign, and there was just a little
damage to the car. You make the offer to dismiss, and the defense attorney says fine.

       A day later, the defense attorney calls you. You see, the defendant is a junior in
high school, and is indigent. He is willing to work, but he can‟t come up with the cash.
Without the cash, the city wants to go to trial.

       What do you do?



References:
NPS 68.1
NPS 69.1
NPS 69.3

CJS 3-4.2


The Purpose of the Scenario.
       The purpose of this scenario is to focus the participants on the plea bargaining
process and the extent of any duty prosecutors may have, if they choose to enter into plea
negotiations, to take into consideration the circumstances of the individual defendants.




Ethical Dilemmas for Prosecutors            73                           Instructor Outline
Instructor Outline:                                  Notes:
Do you set it for trial?

 Visual 75: Hey, I bet on the day of the
trial...

Visual 76: Then how did he come up with
the bond money...

Yes:
1. The victim has the right to ask for
restitution, and a trial date is likely to
produce that money.
2. The defendant doesn‟t have a right to a
plea; he committed the crime and the law
authorizes punishment for it.


No:
1. It is unfair to punish this defendant with a
trial just because he can‟t come up with the
restitution in a lump sum.

Useful resources:
1. NPS 68.1: “Prior to negotiating a plea
agreement, the prosecution should consider
the following factors:
    d. The age, background, and criminal
    history of the defendant;
    g. Undue hardship caused to the
    defendant;
    m. Any provisions for restitution;
    q. With respect to victims, the
    prosecution should consider those
    factors identified above and the
    following:




Ethical Dilemmas for Prosecutors             74   Instructor Outline
       (1) The existence and extent of
       physical injury and emotional trauma
       suffered by the victim; and
       (2) Economic loss suffered by the
       victim.




Ethical Dilemmas for Prosecutors         75   Instructor Outline
                       Scenario Number 20
       You are a new misdemeanor prosecutor. The Monday morning chain has just
been brought into the courtroom. In your jurisdiction, the judge likes to “magistrate”
everyone arrested over the weekend, and then see if any of them are going to waive an
attorney and seek to talk directly to the prosecutor about working the case out.

       One guy who wants to talk to you is charged with DWI. On paper he looks to be
a second offender, but you may not be able to find the old judgment to enhance him. In
addition, you notice that the Intoxilyzer appears to have malfunctioned during his test –
he blew a 0.12, but by the looks of the irregular test slip a proper objection will probably
keep that out.

       But you‟re in luck, cause he wants to work it out. First, he wants to ask you a
couple questions:

        1. What did he blow? The cops wouldn‟t say. If he blew over the limit, he will
take his medicine….

        2. Is there any way you can knock off the second offender status and all of the
hard jail time that is likely to come with it…see, he needs to get back to work as soon as
possible.

       3. What are the chances of conviction, anyhow?



References:
MR 3.8
MR 4.2
MR 4.3

Ethics 2000 MR 3.8 Comment [2]

NPS 24.1
NPS 24.2
NPS 24.4
NPS 24.5




Ethical Dilemmas for Prosecutors             76                           Instructor Outline
The Purpose of the Scenario.
        The purpose of this scenario is to alert the participants to the ethical dangers of
dealing directly with unrepresented defendants. In many jurisdictions this is a practical
necessity, but this remains an ethical danger zone. The question is, how far does the
prosecutor go in treating this person like a person who has a lawyer? On the one hand,
he‟s the one who didn‟t ask for a lawyer, but on the other hand, we know he would be
well served to have a lawyer. Does the prosecutor just “pretend” that the defendant has a
lawyer and give a bargain that would reflect a lawyer‟s intervention?



Instructor Outline:                                                         Notes:

1. do you tell him about the botched
breath test?

Visual 77: Hey, I have enough to do with
my job...

Yes:
1. If he had a lawyer he would find out.
2. Fairness dictates that I treat him like
represented defendants.
3. It‟s not technically Brady, but it‟s close
enough....

No:
1. I told him I don‟t work for him, so he‟s
on notice that I‟m out to convict him.
2. He‟s guilty, so this is not an issue.
3. It‟s not Brady, so forget it.


2. Do you “knock off” the second
offender status?

Visual 78: You hit the jackpot!




Ethical Dilemmas for Prosecutors                77                       Instructor Outline
Yes:
1. I can‟t prove it anyhow.
2. I‟d probably end up reducing it anyhow if
he had a lawyer.

No:
1. There is no reason to do that: even with
a lawyer we would fight about that.
2. this guy is a second offender whether the
state can prove it or not, so there is nothing
wrong with this.


3. Do you talk about his chances of
conviction?

Visual 79: Well, since I‟m prosecuting...

Yes:
1. Hey, he asked for my opinion and he
knows I am not his lawyer.

No:
1. This is a legal opinion, and I can‟t give
that to a defendant.


Useful resources:
1. MR 4.3: “In dealing on behalf of a client
with a person who is not represented by
counsel, a lawyer shall not state or imply
that the lawyer is disinterested. When the
lawyer knows or reasonably should know
that the unrepresented person
misunderstands the lawyer‟s role in the
matter, the lawyer shall make reasonable
efforts to correct the misunderstanding.”




Ethical Dilemmas for Prosecutors               78   Instructor Outline
                       Scenario Number 21
        Another interesting morning at the office. You are sitting at your government-
issue gray metal desk when at 8:30 you get a call from the jail. Collect from “Robert.”
You don‟t know who that is, but you just can‟t resist taking the call. You say hello.
Before you say another word, the man at the other end of the phone says, “Hey, man,
Robert Foster here. Look, man, my lawyer was hired by my man and he is going to
screw me, ya‟know, man? I need to talk to you about a deal. I‟m just a mule in this deal,
OK?”

       The man on the other side is a guy you are prosecuting for possession of a large
quantity of cocaine. The narcotics officers had figured him for a mule all along.

       You are holding the phone in your hand, and have yet to say a word. Quick –
what do you do?


References:
MR 4.2

Ethics 2000 MR 4.2 and Comments

NPS 24.1
NPS 24.2
NPS 24.3
NPS 24.4
NPS 24.5
NPS 24.6



Wood v. Georgia, 450 U.S. 261, 268-69 (1981)
U.S. v. Ryans, 903 F.2d 731, 740 (10th Cir.), cert. denied, 111 S. Ct. 152 (1990)
U.S. v. Hammad, 846 F.2d 854, amended, 858 F.2d 834 (2nd Cir. 1988)




Ethical Dilemmas for Prosecutors            79                           Instructor Outline
The Purpose of the Scenario.
        In recent years there has been much controversy, especially in federal
prosecutions, concerning prosecutor contacts with represented clients. In many instances
the “mules” and other underlings of the drug trade are represented by lawyers hired by
the “kingpin,” and this leads to potential conflicts. In addition the ABA Ethics 2000
project has focused on this rule, and has suggested changes.



Instructor Outline:                                                      Notes:
Do you talk to Robert?

Visual 80: Whip out that tape recorder...

Yes:
1. This is authorized by law because he
called me and wants to cooperate in our
ongoing investigation.
2. I‟ll just listen and not say anything, that
way I‟m not communicating...
3. I‟ll call in a “taint team” – some other
prosecutors/investigators who will talk to
him and not have anything to do with my
prosecution.

No:
1. I don‟t have consent, and when those
lawyers find out I‟ll be sued for sure.
2. I can‟t do it, but I will ask the court to
appoint “shadow counsel” who may
authorize or initiate the contact.

ABA Ethics 2000:
Ethics 2000 Rule 4.2: “In representing a
client, a lawyer shall not communicate about
the subject of the representation with a
person the lawyer knows to be represented
by another lawyer in the matter, unless the


Ethical Dilemmas for Prosecutors                 80                   Instructor Outline
lawyer has the consent of the other lawyer or
is authorized to do so by law or a court
order.”


(Note that Ethics 2000 amends the Rule to
allow contact after authorization by a court
order, as opposed to authorization by law.
In one sense, this offers clear protection to
the prosecutor in this type of situation.)

NPS guidance:
1. NPS 24.1: “In most instances involving
felonies or serious misdemeanors, it is
desirable that a prosecutor communicate
with a defendant through counsel; however,
even in felonies or serious misdemeanors,
there are occasions when it is in the best
interest of justice that a prosecutor
communicate with a defendant not
represented by counsel or whose counsel is
not present.”

2. NPS 24.2: “When a prosecutor
communicates with a defendant not
represented by counsel or whose counsel is
not present, the prosecutor should make
certain that the defendant is treated with
honesty, fairness, and full disclosure of his
liabilities in the matter under discussion. If
legally required, under the circumstances,
the prosecutor should advise the defendant
of his rights. If the prosecutor contemplates
using statements made by the defendant
against him, the prosecutor should advise
the defendant to that effect.”

3. NPS 24.3: “When a defendant is
represented by counsel, but requests to
communicate with a prosecutor outside the
presence of his counsel, the prosecutor
should ascertain if there is a valid reason to
allow such communication and allow the
communication only if a valid reason exists.
The prosecutor has a right to receive


Ethical Dilemmas for Prosecutors                81   Instructor Outline
unsolicited communications from
defendants, of which he has no advance
notice, without the duty of ascertaining
whether or not there is a valid reason for the
communication.”

4. NPS 24.4: “If a prosecutor enters into a
plea negotiation with a defendant not
represented by counsel or whose counsel is
not present, he should make certain that the
defendant understands his rights, duties, and
liabilities under the agreement. When
possible, the agreement should be reduced to
writing and a copy provided to the
defendant. The prosecutor should never
take unfair advantage of an unrepresented
defendant.”

5. NPS 24.5: “If a prosecutor is engaged in
communications with a defendant not
represented by counsel or whose counsel is
not present, and the defendant changes his
mind and expresses a desire to obtain
counsel or to have counsel present (when
represented by counsel), the prosecutor
should allow him to obtain counsel or secure
the presence of counsel and, when
necessary, give him advice on obtaining
appointed counsel.”

7. NPS 24.6: “A prosecutor performing his
duty to investigate should neither be
intimidated nor discouraged from
communicating with a defendant in the
absence of counsel when the communication
is „authorized by law.‟ Such a
communication is allowed. A prosecutor
who communicates with a witness who is
also charged as a defendant in an unrelated
matter, is not communicating about the
subject of the representation, so long as the
prosecutor keeps that matter entirely
separate from the investigation or
prosecution which the prosecutor is
conducting. Similarly, nothing prohibits a
prosecutor from advising or authorizing a



Ethical Dilemmas for Prosecutors             82   Instructor Outline
police officer to engage in communications
with an uncharged, represented suspect in
the absence of the suspect‟s counsel
provided such a communication is
„authorized by law.‟”




Training Tip: Move around. You should move towards the person you are speaking to
in order to display your interest in their answer, and casually move around the group to
keep everyone involved.




Ethical Dilemmas for Prosecutors             83                         Instructor Outline
                    Variation to Number 21
        Robert calls, but this time he says: “Look, man, you got me on my case. But I
want to talk to you about my cell-mate. He‟s charged with sexual assault and he‟s trying
to fake crazy to get out of it....I may push drugs, man, but I can‟t stand no rapist....”

        What do you do now?


The Purpose of the Scenario.
        The purpose of this scenario is to distinguish this situation from the situation
presented in the primary scenario. In the variation, the defendant wants to talk to the
prosecutor about something unrelated to the case against him. Model Rule 4.2 permits
such communication, but the prosecutor must be careful to maintain the limited purpose
of the communication.



Instructor Outline:                                                        Notes:
Visual 81: Let‟s talk...

Do you talk to this defendant?

Yes:
1. The rule allows me to talk about
unrelated issues, so as long as I keep this
separate, I‟m OK.

No:
1. The potential for a grievance is still there;
I‟ll just call this guy‟s lawyer first.




Ethical Dilemmas for Prosecutors              84                       Instructor Outline
Useful resources:
1. MR 4.2: “In representing a client, a
lawyer shall not communicate about the
subject of the representation with a person
the lawyer knows to be represented by
another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or
is authorized by law to do so.”

2. Ethics 2000 rule 4.2: “In representing a
client, a lawyer shall not communicate about
the subject of the representation with a
person the lawyer knows to be represented
by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or
is authorized to do so by law or a court
order.”




Ethical Dilemmas for Prosecutors           85   Instructor Outline
                        Scenario Number 22
       The press is doing a real hatchet job on your latest case. You got a good sentence
on a sweet college girl who just happened to get drunk and kill two people in a car wreck.
Now the reporters are in town trying to interview all of your witnesses and trying to
commit the jurors that, if they had known X or Y, they never would have voted for a
conviction.

       One of the jurors is on the phone now. She wants to know -- should she talk to
the media guy?


References:
MR 3.5

Ethics 2000 MR 3.5(c)

NPS 33.1
NPS 33.2


The Purpose of the Scenario.
        The purpose of this scenario is to highlight the rules regarding contact with jurors,
and the proposed changes to the rules by ABA Ethics 2000. Although communication
during the trial is unethical, the model rules do not prohibit communications with a juror
after the case is completed. Ethics 2000 would expand the existing rules to prohibit
communication with a discharged juror of it is prohibited by law or court order, the juror
doesn‟t wish to be contacted, or the communication involves coercion, duress,
harassment, or misrepresentation.


Instructor Outline:                                                          Notes:
Do you tell her not to talk to the
media?

 Visual 82: Tell them how great the
prosecutor was...




Ethical Dilemmas for Prosecutors             86                           Instructor Outline
Yes:
1. The juror has asked for your advice, there
is nothing wrong with telling her to clam up.
2. You should protect your conviction from
the media meddling.
3. It‟s your duty to protect the juror from
the unfair media tactics.

No:
1. The perception created is bad.
2. Tell the juror to go to the judge.
3. Tell the juror she is on her own.

Useful resources:
1. Ethics 2000 Rule 3.5(c): “A lawyer shall
not...communicate with a juror or
prospective juror after discharge of the jury
if: (1) the communication is prohibited by
court order; (2) the juror has made known to
the lawyer a desire not to communicate; or
(3) the communication involves
misrepresentation, coercion, duress or
harassment...”




Ethical Dilemmas for Prosecutors            87   Instructor Outline
                       Scenario Number 23
         You are handling an intoxication manslaughter/hit and run case. The case is
keeping you up at night. The only witness to the crime managed to get the license number
of the fleeing car, and got a quick look at the male driver as he sped away on the
darkened street. The car came back to a lady who had two sons. The defendant, one of the
sons, was charged after the witness picked his photo out in a photospread. You learn that
the defendant is a church-going college honors student with a good reputation in the
community.

        When you review the police file, you find that the defendant has a similar-looking
brother. This other guy is the black sheep of the family. He's been to the pen before for
robbery, and has 3 prior DWI convictions. You learn that the officer investigating the
case first showed your witness a photospread with this guy's picture in it. The witness
told the officer that the photo of the black sheep brother looked a lot like the driver, but
she is sure that it is the college student who was driving the car. You just don't know.

        The Defense attorney approaches you. He knows that the judge, following the
rules of evidence, will probably keep out the bad brother‟s prior convictions if you object.
So hey, why don‟t you be fair and let the jury hear all about the priors so they can make
up their own minds?

What do you do?




References:
NPS 1.1
NPS 42.3
NPS 43.6

CJS 3-3.9(b)


The Purpose of the Scenario.
        This scenario is a variation of the theme first discussed in Scenario Number 7 –
what is the ethical responsibility of a prosecutor who is not personally convinced on a
defendant‟s guilt? But in this variation, the defense attorney has presented the prosecutor
with a possible option. The option is for the prosecutor to not object to some otherwise
objectionable testimony, and let the jury decide just how much weight it should get.
Should the prosecutor do it, or should the prosecutor be the advocate to the end?


Ethical Dilemmas for Prosecutors            88                           Instructor Outline
Instructor Outline:                                    Notes:
Should the prosecutor “take a dive”
on this evidence?

Visual 83: Are you nuts?

Yes:

1. If the prosecutor‟s doubts are based on
the bad brother‟s criminal record, why not
let the jury take a look, too?
2. As a minister of justice, we don‟t just
seek convictions.

No:
1. The rules of evidence are there for a
reason.
2. In the adversarial system, the prosecutor
needs to represent the state‟s side.


Useful resources:
NPS 42.3 and 43.6 discuss the factors a
prosecutor may consider in charging and
plea bargaining a case. The allow the
prosecutor to act upon doubts about a
person‟s guilt, so the idea that a prosecutor
could waive certain evidentiary rules and
allow the jury to hear evidence at least has
some indirect support as a proper ethical
response to the lingering doubts about guilt.




Ethical Dilemmas for Prosecutors               89   Instructor Outline
                       Scenario Number 24
         A friend has been arrested and charged with DWI -- first offense. You weren‟t
with him at the time. He blew a 0.10 and looks bad on the videotape. He asks if you will
testify for him as to his reputation for sobriety in the community, which you truthfully
know to be good.


References:

MR 3.7

NPS 1.3
NPS 25.3


The Purpose of the Scenario.
        This scenario focuses on the ethical responsibilities of a prosecutor and loyalties
the prosecutors may have to others. The prosecutor can truthfully testify in a helpful
way, but it is obvious that the friend is attempting to use the prosecutor‟s status to help
his case. How should the prosecutor respond to this?


Instructor Outline:                                                          Notes:
Do you testify?

Visual 84: Sure...

Yes:

1. Prosecutors have first amendment rights
like everyone else.
2. Agree to do it, but on the condition that
the lawyer does not ask where you work.
3. If subpoenaed, you must show up and be
truthful.
4. Why not help a friend?




Ethical Dilemmas for Prosecutors             90                           Instructor Outline
No:
1. You should not allow your position to be
used like that.
2. It is unfair to you to let your friend place
you in a position contrary to the state in a
criminal matter.
3. As a practical matter, if the prosecutor
shows you the video you would testify that
your friend was drunk.

Useful resources:
1. NPS 3.1: “The prosecutor should at all
times be zealous in the need to protect the
rights of individuals, but must place the
rights of society in a paramount position in
exercising prosecutorial discretion in
individual cases and in the approach to the
larger issues of improving the law and
making the law conform to the needs of
society.”

2. NPS 25.3: “The prosecutor should
cooperate with defense counsel at all stages
of the criminal process to assure the
attainment of justice and the most
appropriate disposition of each case.”




Ethical Dilemmas for Prosecutors               91   Instructor Outline
                       Scenario Number 25
        Same case as Number 24. Because of your job, you know that the cop who
arrested your friend for DWI has a bad reputation, and was investigated 15 years ago for
perjury. Nothing came of the perjury case, but you know there are lots of complaints in
that guy‟s confidential internal affairs file.



References:
MR 3.7
MR 3.8

NPS 1.3
NPS 25.3


The Purpose of the Scenario.
        In this scenario, by virtue of your position as a prosecutor you are in possession of
information that is helpful to a defendant, who in this case happens to be your friend.
This stuff really doesn‟t rise to the level of exculpatory information, but your friend‟s
attorney would sure like to know about it. What do you do with the knowledge?


Instructor Outline:                                                          Notes:
Do you tell your friend?

 Visual 85: Hey, buddy, what about that
cop?

Yes:
1. there is no reason not to; this guy has a
bad reputation so your friend may find out
about it anyhow?




Ethical Dilemmas for Prosecutors               92                         Instructor Outline
No:
1. Like it or not, this cop is on your team.
2. there may be confidentiality rules
regarding the officer‟s files.

Discussion points:
1. If you would tell your friend, why
haven‟t you taken action about this “bad
cop” in the past, when other people have
been arrested by him?
2. Why not tell your boss and let the office
handle it that way?

Useful resources:
1. NPS 3.1: “The prosecutor should at all
times be zealous in the need to protect the
rights of individuals, but must place the
rights of society in a paramount position in
exercising prosecutorial discretion in
individual cases and in the approach to the
larger issues of improving the law and
making the law conform to the needs of
society.”

2. NPS 25.3: “The prosecutor should
cooperate with defense counsel at all stages
of the criminal process to assure the
attainment of justice and the most
appropriate disposition of each case.”




Ethical Dilemmas for Prosecutors               93   Instructor Outline
                        Scenario Number 26
       Same case as Number 24. But this time your friend didn‟t take the test and this
time your friend looks pretty darn good on the station house videotape.



References:
MR 3.7
MR 3.8

NPS 1.3
NPS 25.3


The Purpose of the Scenario.
        This scenario tests the participants answers in Scenario 24. Should it make a
difference to the prosecutor that his friend appears to have a pretty good shot at a not
guilty verdict?



Instructor Outline:                                                          Notes:
Do you agree to testify?

 Visual 86: Put me up there and let me
loose!

Yes:
1. I have a duty to the truth, and if a person
is not guilty I should help.
2. Just because it is a friend doesn‟t mean I
can‟t help.




Ethical Dilemmas for Prosecutors                 94                       Instructor Outline
No:

1. Guilty or not, you shouldn‟t let your
position be used.

Discussion points:
1. Obviously, your friend has other friends
who can testify. Isn‟t it preferable that they
get involved instead of you?


Useful resources:
1. NPS 3.1: “The prosecutor should at all
times be zealous in the need to protect the
rights of individuals, but must place the
rights of society in a paramount position in
exercising prosecutorial discretion in
individual cases and in the approach to the
larger issues of improving the law and
making the law conform to the needs of
society.”

2. NPS 25.3: “The prosecutor should
cooperate with defense counsel at all stages
of the criminal process to assure the
attainment of justice and the most
appropriate disposition of each case.”




Ethical Dilemmas for Prosecutors               95   Instructor Outline
                        Scenario Number 27
       You are trying an aggravated robbery case. The co-defendant to your hero
already plead out in another court and got 20 years, and gave an “along with” stipulation.

        Wow. You look at the defense attorney‟s subpoena list and see that he has listed
the already-convicted co-defendant. It can‟t be true – is he really going to call the
convicted co-defendant to alibi your guy?

        Unbelievably, he does. You are practically peeing on yourself. You can‟t wait to
hear this testimony....




References:
MR 3.3
MR 3.4
MR 8.3
MR 8.4

NPS 1.1
NPS 1.3
NPS 23.2
NPS 25.6


The Purpose of the Scenario.
        This scenario challenges the participants with the conflict between being an
aggressive advocate and a restrained minister of justice. Prosecutors may resent “doing
the defense attorney‟s job,” but is it in the best interests of the state in this scenario to
prevent the defense attorney‟s mistake?


Instructor Outline:                                                            Notes:
Do you stop the attorney in some
way?

 Visual 87: You‟ve heard about moments
like these...



Ethical Dilemmas for Prosecutors              96                            Instructor Outline
Yes:

1. If you don‟t you‟ll probably see this case
come back after an ineffective assistance of
counsel writ.
2. It is part of your obligation to make sure
the defendant gets a fair trial.
3. Maybe it is a defense trial tactic to
provoke a mistrial or preserve some sort of
post-conviction claim; I‟ll approach the
bench and ask for an attorney for the guy
who will testify.

No:
1. Hey, the defendant knows he is putting
up a lying witness, so why should I prevent
this self-inflicted would?
2. In any event, I‟ve got a great perjury
charge against the witness.

Discussion points:
1. This is a tough one, because it asks the
prosecutor to do an unnatural thing – help
the defendant during the trial. But in the
long run, it is probably a wise thing to do
because it protects the defendant‟s right to a
fair trial, even if the lawyer is lame, and it
protects the conviction for attack.

Useful resources:
MR 8.3: “A lawyer having knowledge that
another lawyer has committed a violation of
the Rules of Professional Conduct that raises
a substantial question as to that lawyer‟s
honesty, trustworthiness or fitness as a
lawyer in other respects, shall inform the
appropriate professional authority.”




Ethical Dilemmas for Prosecutors              97   Instructor Outline
                        Scenario Number 28
        You‟ve been in trial for two days on a tough intoxication manslaughter case. The
tough issue is identity, because the two occupants in the car that caused the crash fled the
scene on foot. They were arrested running away, and were all drunk, but it was dark at
the scene and the witnesses have been vigorously cross-examined about what they saw.
And to top it off, the guy who you believe to be the passenger says he had a head injury,
and doesn‟t remember a thing, including whether or not he was driving.

        Your eyewitness, a nice lady, did fine in court earlier in the day. But now she
comes into the office with a very antagonistic attitude. She announces that she is now
sure that the defendant wasn’t driving the car. She only said that because she was told to
lie by the police.

        Now, that‟s just a ridiculous contention, and you know it. You settle her down,
talk to her for about 30 minutes, and she finally sheepishly admits that she just made up
the bit about the cops telling her to lie because she was having tremendous misgivings
about being the person responsible for ruining that nice young man‟s life.

       End of the story?


Resources:
MR 3.4
MR 3.8
MR 8.4

NPS 1.1
NPS 1.3
NPS 25.4




The Purpose of the Scenario.
       The purpose of this scenario is to alert participants to the pitfalls of discussions
with witnesses and the need to examine those discussions in light of Brady.




Ethical Dilemmas for Prosecutors             98                            Instructor Outline
Instructor Outline:                                                       Notes:
Do you tell the defense attorney
about your little discussion?

 Visual 88: Get it straight, or I will prosecute
you for perjury!

Yes:
1. Cat‟s out of the bag: Once she recanted, even for a second, you need to tell someone.
2. You can tell the court, but she is ready for more testimony and should hold up OK.
3. If you don‟t, what‟s to guarantee that she
won‟t continue to be plagued by doubt and
end up telling the defense attorney and judge
just what she told you – and that she told you
already but you did nothing about it.

No:
1. This was no recantation at all, just a minor
emotional glitch.

Discussion points:
1. One issue that may come up is, should
you have tried to talk her out of her statement
at all?
2. This recantation, even if recanted, is still
exculpatory evidence.
3. This is a real bear trap for prosecutors.
Once the witness breaks down, she clearly
could break down again. A prosecutor
should probably be concerned about the
testimony, and in an abundance of caution
should disclose it to the court.

Useful resources:
MR. 8.4: “It is professional misconduct for a
lawyer to engage in conduct involving
dishonesty, fraud, deceit or
misrepresentation...”.


Ethical Dilemmas for Prosecutors              99                       Instructor Outline
                   Variation to Number 28
        Now, at the end of a long day, comes a knock on your office door. It‟s your
eyewitness. She says that all that pounding on cross-examination has left her wondering
about her identification. She stuck with it under cross, but now she is beginning to
wonder if she was right. After all, the defense attorney is right -- it was dark, a little
rainy, and she was 40 feet away. And the defendant, a nice young man, will lose that
football scholarship if he is convicted. She asks you -- did she do the right thing by
sticking to her guns earlier that day?

       What do you say to her?


References:
MR 3.4
MR 3.8
MR 8.4

NPS 1.1
NPS 1.3
NPS 25.4


The Purpose of the Scenario.
        The purpose of this scenario is to contrast this witness‟ nervousness with her
testimony with the outright recantation in Scenario 27. This situation does not rise to the
level of exculpatory evidence, but is probably fairly characterized as normal witness
behavior. If at the end of your time with her she hasn‟t changed her mind, is this really
something that the defense can use?


Instructor Outline:                                                         Notes:
Do you call the defense attorney?

 Visual 89: A nice group hug and
everything will be OK.




Ethical Dilemmas for Prosecutors            100                          Instructor Outline
Yes:
1. If she has new doubts, the defense needs
to know.

No:
1. This is nothing more than a worn out and
worn down witness.

Discussion points:
1. Obviously, the prosecutor needs to
explore whether or not the witness truly has
doubts, or is just looking for some emotional
comfort at the end of a very grueling
experience. If at the end of the discussion
real doubts remain, then perhaps the best
strategy is for the prosecutor to recall the
witness herself.




Ethical Dilemmas for Prosecutors           101   Instructor Outline
                       Scenario Number 29
        You are handling a DWI that involves an accident. No one was injured in the
accident, but the victim‟s mint-condition 1965 Ford Mustang is now scrap metal. It turns
out that on the night in question the defendant, a young man who was out celebrating his
high school graduation and acceptance into Harvard, got drunk with some friends and got
behind the wheel. He lost control of his car, and ended up smashing into the defenseless
Mustang as it sat in the victim‟s driveway.

        After reviewing the case, you are convinced that probation is appropriate. The
victim demands jail time, and is outraged that you are considering probation. He is
threatening to go to the press, and he‟s got the backing of the local MADD chapter.



References:
MR 3.1
MR 3.8

NPS 1.1
NPS 1.3
NPS 26.1
NPS 68.1


The Purpose of the Scenario.
        The purpose of this scenario is for the participants to explore the prosecutor‟s
relationship with victims of crime. Certainly the victim is very important, but the ultimate
responsibility of a minister of justice is to weigh all of the competing interests and make a
fair decision, even if the victim is not completely satisfied.



Instructor Outline:                                                          Notes:
Do you go for pen time?

 Visual 90: A nice group hug and
everything will be OK.




Ethical Dilemmas for Prosecutors            102                           Instructor Outline
Yes:
1. Hey, let the jury or judge decide – it‟s
their job.
2. Hey, this guy picked this victim, so let
him live with the consequences of his
actions.

No:
1. It‟s my job not to waste a lot of time.
2. It is not fair to the defendant that he goes
to trial just because of a threat about
MADD.

Useful resources:
1. NPS 68.1: “Prior to negotiating a plea
agreement, the prosecution should consider
the following factors:
    d. The age, background, and criminal
    history of the defendant;
    g. Undue hardship caused to the
    defendant;
    m. Any provisions for restitution;
    q. With respect to victims, the
    prosecution should consider those
    factors identified above and the
    following:
        (1) The existence and extent of
        physical injury and emotional trauma
        suffered by the victim; and
        (2) Economic loss suffered by the
        victim.




Ethical Dilemmas for Prosecutors              103   Instructor Outline
                        Scenario Number 30
               Remember Scenario Number 17, in which your friends asked you for
expert advice about what to do if pulled over on suspicion of DWI? Oops. You are
driving home from an office happy hour when you are pulled over. And you may be
some shade of intoxicated. So, do you take the test?



References:
NPS 1.1


The Purpose of the Scenario.
       This scenario takes the issue first raised in Scenario Number 16 to it‟s logical
conclusion. This is the true test of a prosecutor‟s sense of responsibility to the
profession, because it asks the prosecutor to follow the law even if it means criminal
consequences.


Instructor Outline:                                                         Notes:
Do you take the test?

Visual 91: What, you think I‟m nuts?


Yes:
1. I am on the law side of this, so I need to
follow the law.
2. I could never prosecute again if I won‟t
follow the law I seek to enforce.


No:
1. I‟ve got rights like everyone else.
2. I‟ll probably lose my job anyhow.



Ethical Dilemmas for Prosecutors                104                      Instructor Outline
Discussion points:
1. Remember, it is probably a violation of
the law to refuse to provide a breath sample
after a lawful request. Now, the punishment
may be a license suspension, but it is still a
law violation.




Training Tip: Don't plan on using a "passed-around" microphone for students to use
when giving answers. It takes too long, and impedes the free-flowing discussion. Instead,
the instructor should make it a point to repeat the student's comment if others could not
hear it. That also gives the instructor a chance to paraphrase the answer if that is
necessary.



Ethical Dilemmas for Prosecutors            105                        Instructor Outline

								
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