What Makes a Prosecutor Special?  Rule of Professional Conduct 5-110

By Michael Fern and Richard Ceballos

Michael Fern is a deputy district attorney with the Los Angeles County District Attorney's Office and is a member of Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. Richard Ceballos is a deputy district attorney with the Los Angeles County District Attorney's Office and teaches prosecutorial ethics as a lecturer in law at the University of Southern California and the University of California, Irvine. The views expressed in this article are solely those of the authors.

Unlike lawyers who are duty bound to serve their clients as zealous advocates, a prosecutor is an advocate of justice for all parties, not just one particular side. This dual role—as both the defendant's adversary and a guardian of the defendant's rights[1]—is reinforced by Rule 5-110, which became effective on November 2, 2017.

Entitled "Special Responsibilities of a Prosecutor," Rule 5-110 consists of seven sections, (A) through (G), largely mirroring ABA Model Rule 3.8.[2] On November 1, 2018, Rule 5-110 will be renumbered as Rule 3.8, but will otherwise remain unchanged.[3]

Section (A) states: "A criminal prosecutor shall not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause." Probable cause is defined as having a strong suspicion of guilt, a much lower standard than proof beyond a reasonable doubt.[4] This duty is found in existing case law, which holds that "a prosecutor may not bring criminal charges against an individual without probable cause to believe that the charges are valid."[5] Thus, a prosecutor who knows that a charge lacks probable cause has a duty to dismiss or otherwise discontinue its prosecution, and not use an invalid charge as the basis of a plea bargain or as leverage for cooperation against a co-defendant.

Sections (B) and (C) require a prosecutor to protect a defendant who appears in court without an attorney. A prosecutor must "[m]ake 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[.]" In addition, a prosecutor must "[n]ot seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal has approved the appearance of the accused in propria persona[.]" These duties help ensure that unrepresented defendants who wish to plead guilty or waive their right to a preliminary hearing, do so only after a court finds that they are knowingly exercising their Sixth Amendment right to self-representation.[6]

Section (D) reminds prosecutors of their duty to turn over Brady discovery: "Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal." In Brady v. Maryland, the United States Supreme Court held that due process requires a prosecutor to disclose to the defense any evidence that is exculpatory or mitigating.[7] Under Penal Code section 1054.7, a court may issue a protective order to withhold such evidence based on threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of a law enforcement investigation.

Section (E) calls for a prosecutor to "[e]xercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including 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 5-120." Particularly relevant in high-profile cases, this duty requires a prosecutor to caution investigators, law clerks, and other members of the prosecution team about making statements that could have a substantial likelihood of materially prejudicing an adjudicatory proceeding, such as a jury trial. In today's age, extrajudicial statements include online comments and social media posts, not just press releases.

Sections (F) and (G) apply when a prosecutor learns of new, credible, and material evidence that creates a reasonable likelihood of a convicted defendant's factual innocence. Section (F) requires prompt disclosure of such evidence to an appropriate court or authority. If the conviction was obtained in the prosecutor's jurisdiction, the prosecutor must promptly disclose the evidence to the defendant, unless a court authorizes delay, and undertake further investigation or make reasonable efforts to cause an investigation to determine whether a wrongful conviction occurred. Section (G) adds that when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy that conviction. These post-conviction duties, which are relatively new, are tempered by guidance that no violation occurs for "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 (F) and (G), though subsequently determined to have been erroneous."[8]

In sum, Rule 5-110 helps effectuate the primary role of a prosecutor as a minister of justice: "This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons."[9]

[1] See People v. Trevino, (1985) 39 Cal.3d 667, 681.

[2] See ABA Model Rule 3.8, available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html.

[3] See "The State Bar will implement nearly 70 new Rules of Professional Conduct, effective November 2018," State Bar of California (May 10, 2018), http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/the-state-bar-will-implement-nearly-70-new-rules-of-professional-conduct-effective-november-2018.

[4] See Cummiskey v. Superior Court, (1992) 3 Cal.4th 1018, 1029.

[5] See People v. Watts, (1999) 76 Cal.App.4th 1250, 1260.

[6] "Although not stated in the [Sixth] Amendment in so many words, the right to self-representation—to make one's own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Faretta v. California, (1975) 422 U.S. 806, 819-820.

[7] Brady v. Maryland, (1963) 373 U.S. 83, 87-88.

[8] See Discussion [9] to Rule 5-110 Special Responsibilities of a Prosecutor, available at http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-5-110.

[9] See Discussion [1] to Rule 5-110 Special Responsibilities of a Prosecutor, available at http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-5-110.