Ind. Prof. Cond. Rule 3.8

Effective January 1, 2005

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable

cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and

the procedure for obtaining, counsel and has been given reasonable opportunity to obtain

counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,

such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating

information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence

about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of

the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from

making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a

criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

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.

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 viol-

ation of Rule 8.4.

[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a

valuable opportunity to challenge probable cause. Accordingly, prosecutors should not

seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused

appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning

of an uncharged suspect who has knowingly waived the rights to counsel and silence.

[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate

protective order from the tribunal if disclosure of information to the defense could result in

substantial harm to an individual or to the public interest.

[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and

other criminal proceedings to those situations in which there is a genuine need to intrude

into the client-lawyer relationship.

[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have

a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem

of increasing public condemnation of the accused. Although the announcement of an

indictment, for example, will necessarily have severe consequences for the accused, a

prosecutor can, and should, avoid comments which have no legitimate law enforcement

purpose and have a substantial likelihood of increasing public opprobrium of the accused.

Nothing in this Comment is intended to restrict the statements which a prosecutor may

make which comply with Rule 3.6(b), 3.6(c) or 3.6(d).

[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to

responsibilities regarding lawyers and nonlawyers who work for or are associated with the

lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a

criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care

to prevent persons assisting or associated with the prosecutor from making improper

extrajudicial statements, even when such persons are not under the direct supervision of

the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor

issues the appropriate cautions to law-enforcement personnel and other relevant individuals.