Model Rule 3.8: Special Responsibilities of a Prosecutor

When it applies

This comes up whenever a prosecutor decides whether to bring or maintain charges, handles exculpatory evidence, or comments publicly on a pending case; on the MPRE it is tested through fact patterns involving withheld evidence, post-conviction innocence claims, or prosecutors making extrajudicial statements.

What the rule requires

• The prosecutor must refrain from prosecuting a charge the prosecutor knows is not supported by probable cause.
• The prosecutor must make reasonable efforts to ensure the accused has been advised of the right to counsel and given a reasonable opportunity to obtain it.
• The prosecutor must not seek to obtain a waiver of important pretrial rights (like a preliminary hearing) from an unrepresented accused.
• The prosecutor must timely disclose to the defense all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense, and, in connection with sentencing, must disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor (unless relieved by a protective order from a tribunal).
• The prosecutor must exercise reasonable care to prevent investigators, law enforcement, and other associated persons from making improper extrajudicial statements under Rule 3.6.
• The prosecutor must not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes the information is not privileged, the evidence is essential to successfully completing an ongoing investigation or prosecution, and there is no other feasible way to obtain it; the prosecutor must also refrain from extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, except for statements necessary to inform the public of the nature and extent of the prosecutor's action that serve a legitimate law enforcement purpose.

Exceptions

• Disclosure obligations may be limited when a tribunal has entered a protective order.
• When the prosecutor learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor must promptly disclose it to an appropriate court or authority; if the conviction was obtained in the prosecutor's jurisdiction, the prosecutor must also promptly disclose it to the defendant (through counsel if represented; for an unrepresented defendant, ordinarily with a request that the court appoint counsel) unless a court authorizes delay, and must investigate or make reasonable efforts to cause an investigation. If the prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense the defendant did not commit, the prosecutor must seek to remedy the conviction.
• If the conviction was obtained in another jurisdiction, the prosecutor's duty is limited to promptly disclosing the evidence to an appropriate court or authority; the duties to disclose to the defendant, investigate, and seek to remedy the conviction apply only to convictions in the prosecutor's own jurisdiction.

How the MPRE tests Model Rule 3.8

• Students forget that the probable-cause standard uses "knows" (actual knowledge, which may be inferred from circumstances), not merely "reasonably believes."
• Students conflate the general Rule 3.6 extrajudicial-statement restriction with the prosecutor-specific duty to supervise others' statements under 3.8.
• Questions often test whether disclosure duties survive after conviction, which many assume end at trial but actually continue under the post-conviction innocence provisions.
• Students mix up the subpoena-of-lawyer restriction with attorney-client privilege doctrine rather than recognizing it as a distinct prosecutorial ethics duty.