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Concerning the ABA Standards for the Prosecution Function: How Is the Job of Prosecutor Different From the Work of Non-Prosecutor Lawyers?

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As used in these standards, “prosecutor” means any attorney, regardless of agency, title, or full or part-time assignment, who acts as an attorney to investigate or prosecute criminal cases or who provides legal advice regarding a criminal matter to government lawyers, agents, or offices participating in the investigation or prosecution of criminal cases. These Standards are intended to apply in any context in which a lawyer would reasonably understand that a criminal prosecution could result.

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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. When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted. A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

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So what should be the role of the Standards? Should they simply be a way to offer protection to prosecutors from civil liability? Should they be the catalyst that moves oversight into internal offices with no objective review? And should they merely restate existing law that is already the subject of external scrutiny? Perhaps if the Standards serve no effective role and have no enforcement, then it makes little difference whether they are nothing more than a restatement of norms that are codified in law or disciplinary rules. The Standards, however, provide an opportunity to offer hortatory advice" that can improve the legal process. It may seem insignificant to some merely to add two words "sexual orientation" as a pronounced criteria that limits when gays, lesbians, and transgendered individuals are peremptorily excluded from a jury. But, for those who have suffered discriminatory practices, it can serve as a symbolic recognition that gays, lesbians, and transgendered individuals, as a class, have equal rights to judge perpetrators of crimes. It also can offer a true cross-section of society on the jury (Jessica L. West). Ultimately, taking a progressive approach in the Criminal Justice Standards allows for change that can improve prosecutorial and defense practices.The selection of jurors is a hotbed for Supreme Court litigation, with cases prohibiting the use of race" and genders' in excluding jurors on peremptory challenges.8' One also finds many judicial opinions affirming the impropriety of using nationality and ethnicity when striking jurors peremptorily.s In contrast to the courts' recognition of impermissible peremptory juror challenges motivated by one of the above designations, or by religion, the judiciary has given little attention to peremptory challenges premised on sexual orientation, absent a state bar or state constitutional requirement (Ellen S., 1988).

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In fact, in the face of contrary pressures and expectations, both external and internal, it may take a certain amount of inner strength (or strength of character) for an individual prosecutor to decide not to bring criminal charges or to dismiss criminal charges, to comply with procedural norms that make it more difficult to secure convictions, to confess error, or to seek to overturn a conviction that was unfairly procured

These decisions should be easier, however, when prosecutors serve in an office where the "duty to seek justice" is fairly understood and taken seriously.

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Ellen S. Podgor, Criminal Misconduct: Ethical Rule Usage Leads to Regulation of the Legal Profession, 61 TEMP. L. REV. 1323 (1988)

Batson v. Kentucky, 476 U.S. 79,89 (1986).

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 138-42 (1994).

Jessica L. West, 12 Racist Men: Post-Verdict Evidence ofJuror Bias, 27 HARV. J. ON RACIAL & ETHNIC JUST. (forthcoming 201)

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