For the Defense - Vol. 6, Issue 1 - 14

What to Report
While I trust that every PACDL member knows the
Rules of Professional Conduct by heart, below is a brief
description of the rules that most affect prosecutors:

Special Responsibilities of a Prosecutor: Rule 3.8
	
RPC 3.8 imposes several obligations on prosecutors,
but one provision receives the most attention: the
obligation to " make timely disclosure to the defense
of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or
mitigates the offense " or sentence.25 In one regard,
Rule 3.8(d) imposes a broader obligation than the
Brady26 rule: It commands the production of all
exculpatory information, whether or not it is material.27
The information's materiality - the magnitude of its
impact on the truth finding process - will impact the
severity of the sanction imposed for a violation.
The Brady rule, however, sweeps more broadly
than RPC 3.8(c) in that it sometimes dictates reversal
where the police possessed exculpatory information
of which the prosecutor was ignorant. An RPC 3.8(d)
violation requires proof that the prosecutor knew of
the exculpatory information.
Recklessness or a failure to inquire of the police,
however, can suffice to establish knowledge. In
the disciplinary system, recklessness is an objective
standard.28 Once ODC shows that the Respondent's
position was false, " [t]he burden then shifts to the
respondent to establish that the allegations are true
or that he had an objective reasonable belief that
the allegations were true, based upon a reasonably
diligent inquiry. " 29 The rule of competence, RPC 1.1,
applies to all attorneys, including prosecutors, and it
reinforces a prosecutor's constitutional obligation to
educate himself and the police as to their disclosure
obligations.30 Further, defense attorneys can alert
prosecutors to the obligation to investigate by making
a detailed Brady request that informs them of possible
defense theories and evidence that might support
them.

Misrepresentations to the Court, Opposing Counsel
and Third Parties
There are several rules that prohibit the falsification
of evidence including RPC 3.4(b). Additionally,
attorneys are prohibited from making false statements
to courts, RPC 3.3, or to third parties, RPC 4.1. In fact,
any conduct involving " dishonesty, fraud, deceit or
misrepresentation " is grounds for discipline on the
part of any lawyer, including prosecutors. RPC 8.4(c).
Accordingly, false statements in answering discovery

requests, even for incriminating information, would
violate RPC 8.4(c).

Interference with Access to Witnesses: Rule 3.4
No lawyer may " unlawfully obstruct " another party's
access to evidence, RPC 3.4(a), nor may he " request a
person other than a client from voluntarily giving
relevant information to another party. " RPC 3.4(d).
Improperly threatening a witness with prosecution or
instructing a grand jury witness not to speak to the
target or his lawyer may violate this rule.31

Improper Arguments: Rule 3.4(c)
A too-frequent mistake prosecutors make in closing
arguments is vouching for the defendant's guilt
or the credibility of witnesses. RPC 3.4(c) prohibits
assertions of personal opinions as to credibility and
guilt or innocence. When reviewing a conviction, a
court will reverse only if the comment rendered the
trial fundamentally unfair.32 RPC 3.4(c) has no such
requirement.

Conduct Prejudicial to the Administration of Justice:
Rule 8.4(d)
The U.S. and Pennsylvania Constitutions as well
as statutes and rules impose duties on prosecutors
that do not have precise analogues in the Rules of
Professional Conduct. Among others, a prosecutor
may not exercise peremptory challenges in a manner
that intentionally discriminates on the basis of race or
gender.33 Prosecutors must also comply with discovery
obligations involving incriminating evidence. Violations
of these rules can deprive a defendant of a fair trial
and cause dismissal of a case, thereby prejudicing the
administration of justice in violation of RPC 8.4(d).34

Conclusion
My expectations are modest. But I believe that
my office can be effective in educating the bar and
improving the quality of practice. Admonitions and
reprimands can correct mistakes and deter their
reoccurrence. When individual prosecutors engage in
serious repeated misconduct, we have the ability to
prevent further misdeeds by seeking their suspension,
and in the rare case, disbarment. Ultimately, our
aim, as it is with all the discipline we impose, is to
encourage self-regulation, for prosecutors' offices to
police their own conduct and educate their staff and
enhance a culture of ethical conduct and for the other
participants in the system to take misconduct seriously
and, where warranted, report it to us.

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For the Defense - Vol. 6, Issue 1

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