5.3 Prosecutor Duties, Trial Publicity, and Advocate-Witness

Prosecutor Duties, Trial Publicity, and Advocate-Witness (Rules 3.6, 3.7, 3.8)

Litigation requires distinct rules for specific roles and situations. Model Rules 3.6, 3.7, and 3.8 govern three of the most highly tested areas on the MPRE: the special ethical responsibilities of prosecutors, the limits on trial publicity, and the advocate-witness rule. These rules protect the administration of justice from external prejudice and internal confusion.

Special Responsibilities of a Prosecutor (Rule 3.8)

A prosecutor is not simply an advocate; they are a "minister of justice." Their primary obligation is to seek justice, not merely to secure a conviction. Because the government holds immense power, prosecutors are held to strict ethical standards:

1. Probable Cause: Under Rule 3.8(a), a prosecutor must refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
2. Right to Counsel: The prosecutor must 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 a reasonable opportunity to do so.
3. Waiver of Pretrial Rights: A prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. This prevents prosecutors from taking unfair advantage of unrepresented defendants.
4. Disclosure of Exculpatory Evidence: Under Rule 3.8(d), a prosecutor must 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 mitigate the offense. In connection with sentencing, they must disclose all unprivileged mitigating information to the defense and the tribunal. This is the ethical equivalent of the constitutional Brady rule. "Timely" means early enough for the defense to make effective use of the information at trial.
5. Post-Conviction Evidence: If a prosecutor learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense, the prosecutor must promptly disclose it to an appropriate court and the defendant. If the conviction occurred in the prosecutor's own jurisdiction, they must also undertake further investigation to determine if the defendant was wrongfully convicted.

Trial Publicity (Rule 3.6)

To preserve the right to a fair trial by an impartial jury, the Model Rules restrict what lawyers can say publicly about ongoing litigation. Under Rule 3.6(a), a lawyer participating in a case must not make any extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by public communication and will have a "substantial likelihood of materially prejudicing" the proceeding.

The rule identifies several topics that are presumed to be prejudicial, including statements about:

• The character, credibility, or criminal history of a party or witness.
• The results of any tests or examinations (or the refusal to take a test).
• The existence or contents of any confession or admission.
• An opinion as to the guilt or innocence of a defendant in a criminal case.
• Information that is likely to be inadmissible at trial.

However, Rule 3.6(b) provides a "safe harbor" of permitted statements. A lawyer may state:

• The claim, offense, or defense, and the identity of the persons involved.
• Information contained in a public record.
• The scheduling or result of any step in the litigation.
• A request for public assistance in obtaining evidence.
• A warning of danger if there is a likelihood of substantial harm.
• In criminal cases, basic information about the arrest (time, place, arresting officers) and the identity of the accused (unless they are still at large).

Additionally, Rule 3.6(c) contains a "right of reply" exception. A lawyer may make a statement to the extent necessary to protect a client from the substantial undue prejudicial effect of recent publicity that was not initiated by the client or the lawyer. This statement must be strictly limited to what is necessary to mitigate the prejudice.

The Advocate-Witness Rule (Rule 3.7)

To prevent jury confusion and protect the integrity of the testimonial process, Model Rule 3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a "necessary witness." A witness is "necessary" if their testimony is material and cannot be obtained from other sources.

There are three narrow exceptions where a lawyer may serve as both advocate and witness:

1. The testimony relates to an uncontested issue.
2. The testimony relates to the nature and value of legal services rendered in the case (e.g., testifying about attorney's fees).
3. Disqualification of the lawyer would work substantial hardship on the client. Substantial hardship requires more than just additional expense or inconvenience; it typically requires showing that the lawyer has a long-standing relationship with the client and unique expertise that cannot be replaced without severe prejudice.

Importantly, the advocate-witness rule is not imputed to the other lawyers in the firm. Under Rule 3.7(b), a lawyer may act as advocate in a trial in which another lawyer in their firm is likely to be called as a witness, unless precluded from doing so by the conflict of interest rules (Rule 1.7 or Rule 1.9). For example, if the testifying lawyer's testimony will be directly adverse to the client, a conflict of interest exists under Rule 1.7, and the entire firm is disqualified under Rule 1.10. But if the testimony is helpful or neutral, another lawyer in the firm may represent the client.