Concept
Heightened Candor in Court
Prosecutors and other government lawyers
Heightened Candor in Court
Rule 3.8 collects the duties that belong to prosecutors alone, among them the duty to refrain from prosecuting a charge the prosecutor knows is not supported by probable cause1 and the duty to make timely disclosure to the defense of evidence or information that tends to negate guilt or mitigates the offense.2 Those paragraphs do not exhaust what the profession demands of a government lawyer. The general rules that govern every advocate bind the prosecutor too, and they bind with special force, because misconduct by the government's lawyer injures the integrity of public justice more and raises the danger that an innocent person will be unjustly deprived of liberty.3
Where prosecutorial standards differ from those governing other lawyers, the difference is typically one of degree rather than kind, but the difference in degree is meaningful.4 A lawyer who lies to a court breaks the same rule whether the client is a civil litigant or the sovereign, and no special paragraph of Rule 3.8 is needed to say so. What changes is how gravely tribunals and disciplinary authorities regard the lie when the government's lawyer tells it.
This section follows that heightened candor into the courtroom in two directions. The first concerns what a prosecutor may put before the factfinder as evidence and argument. The second concerns what a prosecutor must tell the court itself, even when no opposing lawyer is present to ask. Both serve the truth-finding function of the criminal process.
Truthful Evidence and Argument
The core of a prosecutor's duty in the courtroom is a heightened duty of candor, joined to a public-regarding responsibility for the truth-finding function of the criminal justice system.5 Truth-finding here means the process's purpose of reaching accurate facts about what happened. The heightening shows up in three places: in what the prosecutor may tell the jury is true, in how the prosecutor may treat a witness who is telling the truth, and in how gravely tribunals regard the familiar courtroom abuses when a prosecutor commits them. Each is a difference of degree, and each traces to the prosecutor's client, a sovereign whose interest in a criminal prosecution is not that it win a case but that justice be done.6
The first rule concerns falsehood. A prosecutor must never present evidence or make statements to the jury that the prosecutor actually knows to be false, and it is also improper to present statements or inferences that the prosecutor has very strong reason to doubt.7 The rule has two tiers. The first, knowledge, reaches the plain lie. The second, very strong reason to doubt, closes the gap between knowing and choosing not to look: a prosecutor who is nearly certain that an inference has no support, but who avoids forming a final belief, still delivers the falsehood to the jury.
The first statement is dishonesty before a tribunal, and a prosecutor's misconduct of that kind is regarded as particularly grave.8 The second prosecutor stays within the role, because the minister-of-justice idea never asked for timid prosecution. A prosecutor may prosecute with earnestness and vigor and may strike hard blows, but may not strike foul ones.9 The force of the two closings is the same. What separates them is whether the jury is told something the prosecutor knows to be untrue, and the second argument draws its inference from the evidence as it actually reads.
The second rule concerns the other side's witnesses. A criminal defense lawyer has a duty as an advocate to undermine the prosecution's case, and that duty includes cross-examining witnesses who are telling the truth.10 The prosecutor, by contrast, is forbidden from discrediting a witness who is presenting truthful testimony.11 The two lawyers answer to different clients. The defense lawyer's client is the accused, who is entitled to make the government prove its case, and pressing even an honest witness on distance, lighting, or memory is how that entitlement is used. The prosecutor's client is a sovereign whose interest is that justice be done, so a prosecutor who attacks honest testimony works against the outcome the office exists to produce.12 The limit does not protect a lying witness. It applies to testimony that is true.
The prosecutor's closing discredits truthful testimony, which the role forbids. The defense lawyer's cross-examination is ordinary advocacy, even though the lawyer doubts that the witness is lying. Do not carry the prosecutor's limit across the aisle, and do not read it as barring a prosecutor from ever challenging a defense witness. The prohibition turns on whether the testimony is true and on which lawyer is attacking it.
The heightened treatment reaches past falsehood to the other familiar abuses of courtroom advocacy. Courts and disciplinary authorities should regard as particularly grave any professional misconduct that a prosecutor commits in prosecuting a case, including dishonesty before a tribunal, an appeal to prejudice, methods whose only purpose is to embarrass or burden another, improper vouching for or against the credibility of a witness, and improper argument before the jury.13 Vouching, a lawyer's personal assurance to the jury that a witness is or is not credible, shows why the prosecutor's version is worse. A jury that hears the government's lawyer say a witness can be believed may infer that the lawyer knows things outside the record. Every one of these abuses is wrong when any lawyer commits it. When a prosecutor commits it, the injury to the integrity of public justice is greater and so is the risk that an innocent person will be convicted.14
No paragraph of Rule 3.8 states these duties. They come from the general rules governing advocates, applied to the prosecutor with special force, while the text of Rule 3.8 addresses other subjects, such as the ban on charges unsupported by probable cause and the duty of timely disclosure to the defense.15 On an exam, a prosecutor's false statement in closing or improper vouching should therefore be analyzed under the general candor and fairness rules, with attention to how much graver the same conduct is when the government commits it.
Disclosure to the Tribunal
Rule 3.8(d) mentions the tribunal only in its sentencing clause, which requires the prosecutor to disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, unless a protective order relieves the prosecutor of that duty.17 The other occasions on which a prosecutor must put adverse material before a court come from the general candor rules that bind all lawyers, applied to prosecutors with special force.18 Professor Bruce Green observes that prosecutors are expected to volunteer relevant factual and legal information in various situations where other attorneys, and certainly criminal defense lawyers, might legitimately remain reticent.19 Two settings show the expectation at work: the proceeding in which only one side appears, with the grand jury presentation as the leading example, and the discovery that a juror has been untruthful. In both, the protection an opposing lawyer ordinarily supplies is missing or useless, since that lawyer is either absent or unaware of what the prosecutor knows.
An ex parte proceeding is one in which only one side appears before the decision maker. The adversary system lets an advocate stop short of volunteering damaging facts because it assumes an opponent will bring out whatever the advocate leaves behind. When no opponent is present, that assumption has nothing to rest on, and the decision maker sees only what the lawyer chooses to show. A lawyer in such a proceeding must therefore reveal the material facts that cut against the lawyer's own position, even though no one has asked, so that the tribunal decides on an honest picture. For a prosecutor the duty carries added weight, because a one-sided presentation by the government's lawyer does greater injury to public justice.20
Prosecutors meet this situation regularly, because a grand jury presentation proceeds without anyone speaking for the person under investigation, and the prosecutor who controls the evidence is the only lawyer in the room. The setting also bears on the rule that forbids prosecuting a charge the prosecutor knows is not supported by probable cause.21 A grand jury decides whether to accuse, and the probable-cause floor would be easy to evade if the prosecutor could show that body only the incriminating half of what the prosecutor knows.
The same record looks different at a contested preliminary hearing where defense counsel is present. Defense counsel can cross-examine, call witnesses, and press for discovery, so the adversary system's usual assumption is back in play: the opponent will surface what the advocate leaves out. The record would still have to go to defense counsel under paragraph (d), because it tends to negate guilt.22 In the adversarial hearing the adverse fact reaches the tribunal through the defense. In the grand jury room it reaches the tribunal only if the prosecutor puts it there.
The second duty arises when a prosecutor learns that a juror has not been truthful. Voir dire is the questioning of prospective jurors through which the court and the lawyers learn whether each can decide the case impartially, so a juror's answers are the information on which that judgment rests, and a false answer corrupts it. A prosecutor who knows of juror misconduct, including a juror's false answer to a question about the juror's relationship with a lawyer or witness, must inform the court. The reasons run in three links. Only the court can investigate and act, by questioning the juror, holding a hearing, or excusing the juror, and it cannot act on a fact it has never heard. Defense counsel cannot raise what defense counsel does not know, and the prosecutor may be the only person who does. And a prosecutor whose client's interest is that justice be done, and not that the case be won, cannot let a verdict stand on a process the prosecutor knows to be compromised.23
The facts of Williams v. Taylor illustrate the setting. A juror had answered that no lawyer in the case had ever represented her, although the prosecutor knew that he once had, and he also knew of her relationship with a prosecution witness. Silence was not open to a prosecutor in that position. He held facts bearing on the juror's impartiality that no one else in the courtroom could supply. The duty is clearest on those facts for a further reason: the false answer concerned the prosecutor himself. He was the one person certain the answer was false, and his silence would have left it standing in a trial where he was the government's lawyer. A prosecutor in that position cannot treat the juror's misstatement as the juror's problem alone.
An exam stem in which a prosecutor stays silent about a fact that hurts the government calls for two questions. The first is whether the proceeding was one-sided. Only then does the general duty to reveal adverse facts to the tribunal operate by itself, while in a contested hearing with defense counsel present the specific disclosure duties, such as paragraph (d), do the work. The second is what the prosecutor actually knew about the juror. As with the disclosure duty in paragraph (d), the trigger is the prosecutor's knowledge, so a juror's false answer that the prosecutor knows to be false puts the duty in play.24