MRPC Rule 3.8

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 degree of 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; and

(e) 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.

(f) When a prosecutor knows of new, credible, and material evidence creating a reasonable

likelihood that a convicted defendant is innocent of the crime for which the defendant was

convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay,

and

(ii) undertake further investigation, or make reasonable efforts to cause an

investigation, to determine whether the defendant is innocent of the crime.

(g) When a prosecutor knows of clear and convincing evidence establishing that a defendant in

the prosecutor’s jurisdiction is innocent of the crime for which defendant was prosecuted,

the prosecutor shall seek to remedy the conviction.

(h) A prosecutor’s independent judgment, made in good faith, that the new evidence is not of

such nature as to trigger the obligations of section (f) and (g), though subsequently

determined to have been erroneous, does not constitute a violation of this Rule.

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. Cf. Rule 3.3(d),

governing ex parte proceedings, among which grand jury proceedings are included. 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.

Michigan Rules of Professional Conduct 65 Updated with MSC order(s)

Michigan Rules of Professional Conduct 66 Updated with MSC order(s)

Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal.

Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to

counsel and silence.

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.

In paragraphs (b) and (e), this rule imposes on a prosecutor an obligation to make reasonable

efforts and to take reasonable care to assure that a defendant’s rights are protected. Of course,

not all of the individuals who might encroach upon those rights are under the control of the

prosecutor. The prosecutor cannot be held responsible for the actions of persons over whom the

prosecutor does not exercise authority. The prosecutor’s obligation is discharged if the

prosecutor has taken reasonable and appropriate steps to assure that the defendant’s rights are

protected.