Table Of Contents - Prosecutors' Center For Excellence

North Carolina Conference ofDistrict Attorneyspunish a prosecutor whom they suspect of unethical conduct.You effectiveness as a litigator will be crippled. Yourcredibility with members of the defense bar will affect yourability to negotiate cases, as well as the civility of yourpractice, and your enjoyment of your job. No case is worthyour reputation. You’ll know. You didn’t become a prosecutor to get rich ortake the easy path. You did it because you know right fromwrong and it’s important to you to be on the side of right.Remember this when you’re tempted to cut an ethical corner;even in the unlikely event that it stays hidden for your entirecareer, you’ll still know, and it will rob you of the self-esteemthat is your work’s most valuable reward.8

North Carolina Conference ofDistrict AttorneysProfessional ConductEthical principles are the essence of criminal prosecution,not a burden upon it. Compliance with ethical rules requiresthat we know the rules: remain vigilant, remember thediverse public interests we have sworn to serve, and remindone another that we became prosecutors to seek justiceFor your day-to-day practice, however, most ethicalprinciples underlying the Rules can be distilled to a fewcommon sense principles of fairness and professionalismfound in the Prosecutor’s Professionalism Creed:Prosecutor’s Professionalism CreedTo the people of North Carolina, I offer competence,faithfulness, diligence, and good judgment. I will representyou as I would want to be represented and to be worthy ofyour trust.To the opposing parties and their counsel, I offer fairness,integrity, and civility. I will seek reconciliation and, if we failto achieve it, I will make our dispute a dignified one.To the courts, and other tribunals, and to those who assistthem, I offer respect, truthfulness, and courtesy. I will striveto bring honor to the search for justice.To the profession, I offer assistance. I will strive to keep ourprofession a high calling in the spirit of public service.9

North Carolina Conference ofDistrict AttorneysTo the public, I offer service. I will strive to improve the lawand our legal system, serving all equally, and to seek justicethrough the representation of the people.The Prosecutor’s Professional Creed was modeled after TheNC Chief Justice's Commission on Professionalism's Lawyer'sProfessionalism Creed which is modeled after The Lawyer'sCreed in the state of GA.10

North Carolina Conference ofDistrict AttorneysRules of Professional Conduct Be Prepared. You must acquire “the legal knowledge,skill, thoroughness and preparation reasonablynecessary for the representation.” (Rule 1.1). Be Diligent. You must “act with reasonable diligenceand promptness.” (Rule 1.3) Tell The Truth. You must be candid about the facts andthe law with judges, opposing counsel, and others. Inrepresenting the People, you must not “knowinglymake a false statement of material fact or law to atribunal or fail to correct a false statement of materialfact or law [you] previously made to the tribunal”; “failto disclose to the tribunal controlling legal authority”not already cited by opposing counsel; “offer or useevidence that [you] know is false” and if you becomeaware that the evidence you have presented is false,you “shall take reasonable remedial measures including,if necessary, disclosure to the tribunal” (Rule 3.3). Youmust not “knowingly make a false statement of materialfact or law to a third person” (Rule 4.1). You must notmake a false statement in an application formembership to the bar (Rule 8.1) or “concerning thequalifications or integrity of a judge” or judicialcandidate (Rule 8.2). In an ex parte proceeding, youmust disclose to the court all material facts known toyou, including adverse facts that will enable the court tomake an informed decision (Rule 3.3[d]). Know Your Role. When communicating withunrepresented persons, do not give legal advice otherthan the advice to secure counsel and do not imply you11

North Carolina Conference ofDistrict Attorneysare disinterested. You must not misrepresent your rolein the matter (Rule 4.3). You must “make reasonableefforts to assure the accused has been advised of theright to ,and the procedure for obtaining counsel andhas been given reasonable opportunity to obtaincounsel” (Rule 3.8[b]). Do “not seek to obtain from anunrepresented accused a waiver of important pretrialrights, such as the right to a preliminary hearing.” (Rule3.8[c]) Don’t Prosecute Without Probable Cause. As aprosecutor, “you shall refrain from prosecuting a chargethat [you] know is not supported by probable cause”(Rule 3.8[a]). Don’t Make Frivolous Arguments. You must not “bringor defend a proceeding, or assert or controvert an issuetherein, unless there is a basis in law and fact for doingso that is not frivolous.” Attorneys may, however, arguein good faith for an extension, modification, or reversalof existing law (Rule 3.1). Be Fair. You must not knowingly “obstruct anotherparty’s access to evidence or unlawfully alter, destroy orconceal a document or other material having potentialevidentiary value” (Rule3.4[a]). Do not” falsify evidence,counsel or assist a witness to testify falsely, to hide orleave the jurisdiction for the purpose of beingunavailable as a witness, or offer an inducement to awitness that is prohibited by law” (Rule 3.4[b]) Youmust not communicate directly or indirectly with aperson represented by another lawyer, unless you havethe lawyer’s consent or are otherwise authorized to doso “by law or by court order” (Rule 4.2).12

North Carolina Conference ofDistrict Attorneys Protect The Integrity Of Courts And Juries. In anadversarial proceeding, you must not engage inunauthorized ex parte communications with the judgeor his or her staff regarding the merits. During alitigation, whether or not you are a participant, youmust not engage in or cause another to engage inprohibited communications with a sitting juror orprospective juror or a juror’s family members. After thejury has been discharged, “[you] may communicate witha juror unless the communication is prohibited by lawor court order. [You] must refrain from asking questionsor making comments that tend to harass or embarrassthe juror or to influence actions of the juror in futurecases and must respect the desire of the juror not totalk with [you]. [You] may not engage in improperconduct during the communication.” You mustpromptly reveal to the court any improper conduct by ajuror or by another toward a juror, venire person, ormembers of their families (Rule 3.5). Try Your Case In The Courtroom, Not The Media. Thegeneral rule is that a lawyer participating in a criminalor civil proceeding “shall not make an extrajudicialstatement that the lawyer knows or reasonably shouldknow will be disseminated by means of publiccommunication and will have a substantial likelihood ofmaterially prejudicing an adjudicative proceeding in thematter.” (Rule 3.6[a]). Rule 3.6[a] includes a list ofcategories of statements to the media deemed likely tomaterially prejudice a criminal proceeding, and a list ofstatements that can properly be made; read it beforespeaking with the media. Any statement announcingthat a particular person has been charged with a crimemust be accompanied by a statement that the charge ismerely an accusation and that the defendant ispresumed innocent unless and until proven guilty (Rule13

North Carolina Conference ofDistrict Attorneys3.6). Specific to prosecutors “except for statementsthat are necessary to inform the public of the natureand extent of the prosecutors action and that serve alegitimate law enforcement purpose, refrain frommaking extrajudicial comments that have a substantiallikelihood of heightening public condemnation of theaccused and exercise reasonable care to preventinvestigators, law enforcement personnel, employeesor other persons assisting with the prosecutor in acriminal case from making an extrajudicial statementthat the prosecutor would be prohibited from makingunder Rule 3.6 or this Rule” (Rule 3.8[f]). Obey The Law. You must not “commit a criminal actthat reflects adversely on [your] honesty,trustworthiness or fitness as a lawyer in other respectsor engage in conduct involving dishonesty fraud deceitor misrepresentation or engage in conduct that isprejudicial to the administration of justice” (Rule 8.4). Provide Guidance. The District Attorney andsupervisory prosecutors have an ethical duty to “makereasonable efforts” to ensure that subordinates actethically (Rules 5.1). In addition, you can be heldresponsible for another prosecutor or non-lawyer’sconduct that is a violation of the Rules of ProfessionalConduct if you “order or, with knowledge of the specificconduct, ratify the conduct involved (Rules 5.1 and 5.3). Comply With Disclosure Rules. After reasonably diligentinquiry, make timely disclosure to the defense of allevidence or information required to be disclosed byapplicable law, rules of procedure, or court opinionsincluding all evidence or information known to theprosecutor that tends to negate the guilt of the accused14

North Carolina Conference ofDistrict Attorneysor mitigates the offense, and, in connection withsentencing, disclose to the defense and to the tribunalall unprivileged mitigating information known to theprosecutor, except when the prosecutor is relieved ofthis responsibility by a protective order of the tribunal.(Rule 3.8[d]) “Every prosecutor should be aware of thediscovery requirements established by statutory lawand case law.” See, e.g., N.C. Gen. Stat. §15A-903 et.seq, Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.U.S., 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419(1995). [You] may seek an appropriate protective orderfrom the tribunal if disclosure of information to thedefense could result in substantial harm to an individualor to the public interest” (Rule 3.8, Comment 4).*The complete Rules of Professional Conduct can beaccessed through the State Bar website at www.ncbar.comIf you confront specific issues involving any of thesemandatory ethical rules, you should review the text of therule itself and relevant advisory opinions issued by the StateBar.15

North Carolina Conference ofDistrict AttorneysRule 3.8 SpecialResponsibilities of aProsecutorThe prosecutor in a criminal case shall:a) refrain from prosecuting a charge that the prosecutorknows is not supported by probable cause;b) make reasonable efforts to assure that the accused hasbeen advised of the right to, and the procedure forobtaining, counsel and has been given reasonableopportunity to obtain counsel;c) not seek to obtain from an unrepresented accused awaiver of important pretrial rights, such as the right to apreliminary hearing;d)after reasonably diligent inquiry, make timelydisclosure to the defense of all evidence or informationrequired to be disclosed by applicable law, rules ofprocedure, or court opinions including all evidence orinformation known to the prosecutor that tends tonegate the guilt of the accused or mitigates the offense,and, in connection with sentencing, disclose to thedefense and to the tribunal all unprivileged mitigatinginformation known to the prosecutor, except when theprosecutor is relieved of this responsibility by aprotective order of the tribunal;e)not subpoena a lawyer in a grand jury or other criminalproceeding to present evidence about a past or presentclient, or participate in the application for the issuance16

North Carolina Conference ofDistrict Attorneysof a search warrant to a lawyer for the seizure ofinformation of a past or present client in connectionwith an investigation of someone other than the lawyer,unless:f)i.the information sought is not protected fromdisclosure by any applicable privilege;ii.the evidence sought is essential to thesuccessful completion of an ongoinginvestigation or prosecution; andiii.there is no other feasible alternative to obtainthe information;except for statements that are necessary to inform thepublic of the nature and extent of the prosecutor'saction and that serve a legitimate law enforcementpurpose, refrain from making extrajudicial commentsthat have a substantial likelihood of heightening publiccondemnation of the accused and exercise reasonablecare to prevent investigators, law enforcementpersonnel, employees or other persons assisting orassociated with the prosecutor in a criminal case frommaking an extrajudicial statement that the prosecutorwould be prohibited from making under Rule 3.6 or thisRule.Comment[1] A prosecutor has the responsibility of a minister ofjustice and not simply that of an advocate; the prosecutor'sduty is to seek justice, not merely to convict. Thisresponsibility carries with it specific obligations to see thatthe defendant is accorded procedural justice and that guiltis decided upon the basis of sufficient evidence. Precisely17

North Carolina Conference ofDistrict Attorneyshow far the prosecutor is required to go in this direction is amatter of debate and varies in different jurisdictions. Seethe ABA Standards of Criminal Justice Relating to theProsecution Function. A systematic abuse of prosecutorialdiscretion could constitute a violation of Rule 8.4.[2] The prosecutor represents the sovereign and, therefore,should use restraint in the discretionary exercise ofgovernment powers, such as in the selection of cases toprosecute. During trial, the prosecutor is not only anadvocate, but he or she also may make decisions normallymade by an individual client, and those affecting the publicinterest should be fair to all. In our system of criminaljustice, the accused is to be given the benefit of allreasonable doubt. With respect to evidence and witnesses,the prosecutor has responsibilities different from those of alawyer in private practice; the prosecutor should maketimely disclosure to the defense of available evidenceknown to him or her that tends to negate the guilt of theaccused, mitigate the degree of the offense, or reduce thepunishment. Further, a prosecutor should not intentionallyavoid pursuit of evidence merely because he or she believesit will damage the prosecutor's case or aid the accused.[3] Paragraph (c) does not apply, however, to an accusedappearing pro se with the approval of the tribunal. Nor doesit forbid the lawful questioning of an uncharged suspectwho has knowingly waived the rights to counsel and silence.[4] Every prosecutor should be aware of the discoveryrequirements established by statutory law and case law.See, e.g., N.C. Gen. Stat. §15A-903 et. seq, Brady v.Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150(1972); Kyles v. Whitley, 514 U.S. 419 (1995). The exceptionin paragraph (d) recognizes that a prosecutor may seek anappropriate protective order from the tribunal if disclosureof information to the defense could result in substantial18

North Carolina Conference ofDistrict Attorneysharm to an individual or to the public interest.[5] Paragraph (e) is intended to limit the issuance of lawyersubpoenas in grand jury and other criminal proceedings,and search warrants for client information, to thosesituations in which there is a genuine need to intrude intothe client-lawyer relationship. The provision applies onlywhen someone other than the lawyer is the target of acriminal investigation.[6] Paragraph (f) supplements Rule 3.6, which prohibitsextrajudicial statements that have a substantial likelihood ofprejudicing an adjudicatory proceeding. In the context of acriminal prosecution, a prosecutor's extrajudicial statementcan create the additional problem of increasing publiccondemnation of the accused. Although the announcementof an indictment, for example, will necessarily have severeconsequences for the accused, a prosecutor can, andshould, avoid comments which have no legitimate lawenforcement purpose and have a substantial likelihood ofincreasing public opprobrium of the accused. Nothing in thisComment is intended to restrict the statements that aprosecutor may make which comply with Rule 3.6(b) or3.6(c).[7] Like other lawyers, prosecutors are subject to Rules 5.1and 5.3, which relate to responsibilities regarding lawyersand nonlawyers who work for or are associated with thelawyer's office. Paragraph (f) reminds the prosecutor of theimportance of these obligations in connection with theunique dangers of improper extrajudicial statements in acriminal case. In addition, paragraph (f) requires aprosecutor to exercise reasonable care to prevent personsassisting or associated with the prosecutor from makingimproper extrajudicial statements, even when such personsare not under the direct supervision of the prosecutor.Ordinarily, the reasonable care standard will be satisfied if19

North Carolina Conference ofDistrict Attorneysthe prosecutor issues the appropriate cautions to lawenforcement personnel and other relevant individuals.History Note: Statutory Authority G. 84-23Adopted July 24, 1997; Amended March 1, 2003.Amended November 16, 2006.Ethics Opinion NotesRPC 129. Opinion rules that prosecutors and defenseattorneys may negotiate plea agreements in whichappellate and postconviction rights are waived, except inregard to allegations of ineffective assistance of counsel orprosecutorial misconduct.RPC 152. Opinion rules that the prosecutor and the defenseattorney must see that all material terms of a negotiatedplea are disclosed in response to direct questionsconcerning such matters when pleas are entered in opencourt.RPC 197. A prosecutor must notify defense counsel, jailofficials, or other appropriate persons to avoid theunnecessary detention of a criminal defendant after thecharges against the defendant have been dismissed by theprosecutor.RPC 204. It is prejudicial to the administration of justice fora prosecutor to offer special treatment to individualscharged with traffic offenses or minor crimes in exchangefor a direct charitable contribution to the local schoolsystem.RPC 243. It is prejudicial to the administration of justice fora prosecutor to threaten to use his discretion to schedule a20

North Carolina Conference ofDistrict Attorneyscriminal trial to coerce a plea agreement from a criminaldefendant.2011 Formal Ethics Opinion 16. A criminal defense lawyeraccused of ineffective assistan

themselves by agencies such as the North Carolina Attorney General, other state prosecutors, or the U.S. Attorney. You may be sued civilly for damages. To ensure their independent judgment and zealous advocacy, our law confers absolute immunity from civil liability upon individual prosecutors acting in their role as advocates for the state.