3.8 Special Responsibilities of a Prosecutor

The prosecutor shall:

(a) refrain from prosecuting a criminal or juvenile charge that the prosecutor knows is not supported by probable cause;

(b) make timely disclosure in a criminal or juvenile case to counsel for the defendant, or to a defendant without counsel, of the existence of evidence or information known to the prosecutor after diligent inquiry and within the prosecutor’s possession or control, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment;

(c) refrain from conducting a civil, juvenile, or criminal case against any person whom the prosecutor knows that the prosecutor represents or has represented as a client;

(d) refrain from conducting a civil, juvenile, or criminal case against any person relative to a matter in which the prosecutor knows that the prosecutor represents or has represented a complaining witness.


COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] Subsections (a) and (b) are based on ABA Disciplinary Rule 7-103(A) and (B). Subsections (c) and (d) have evolved from Maine common law.

[2A] The duties of a prosecutor include the duty to make, with reasonable diligence, and within a reasonable time, a reasonable inquiry of any member of the prosecutor’s staff, any employee of an agency of the state or political subdivision that regularly reports to the prosecutor, or has reported in the particular case. The disclosure requirements under subsection (b) are an ongoing duty.

[3] It has long been the case that public prosecutors carry special ethical duties: they have an obligation to seek justice, not just to convict. Prosecutors face ethical obligations not shared by other lawyers, due to their dual role of advocate and government official. As a public officer and government representative vested with special powers and privileges, a prosecutor has corresponding obligations to assure protection of all citizens’ rights, including those of criminal defendants.

[4] [Reserved]

[5] [Reserved]

[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities of lawyers and nonlawyers who work for or are associated with the lawyer’s office.


REPORTER’S NOTES:

Model Rule 3.8, addressing the special responsibilities of a prosecutor corresponds to M. Bar R. 3.7(i)(1)-(4). For the reasons set forth below, the Task Force recommended adoption of the Model Rule 3.8(a), followed by the provisions found in M. Bar R. 3.7(i)(2)-(4).

In connection with its consideration of Rule 3.8, the Task Force consulted with the Advisory Committee on Rules of Criminal Procedure, as well as Maine prosecutors. After consultation and discussion, the Task Force concluded that Model Rule 3.8 imposed restrictions and obligations on prosecutors that could not be easily enforced; indeed, some of the obligations imposed upon prosecutors by the Model rule are not required by substantive law. There was also concern expressed about Model Rule 3.8’s balance of First Amendment free speech rights, and the state’s interest in protecting the rights of the accused.

The Task Force ultimately determined that Model Rule subsections (b)-(f) were unnecessary, and in some cases not appropriate for Maine. M. Bar R. 3.7(i)(1)-(4), governing prosecutors, has worked well and has provided appropriate guidance to prosecutors in Maine. Accordingly, the Task Force recommended the adoption of Rule 3.8, substantively modified as described.