Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › ADVOCATE › Rule 3.8 - Special Responsibilities of a Prosecutor

Current through Register Vol. 54, No. 28, July 13, 2024
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that
						the prosecutor knows is not supported by probable cause;
(b) make 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;
(c) not seek to obtain from an unrepresented
						accused a waiver of important pretrial rights, such as the right to a
						preliminary hearing;
(d) make
						timely disclosure to the defense of all evidence or information known to the
						prosecutor that tends to negate the guilt of the accused or mitigates the
						offense, and, in connection with sentencing, disclose to the defense and to the
						tribunal all unprivileged mitigating information known to the prosecutor,
						except when the prosecutor is relieved of this responsibility by a protective
						order of the tribunal; and
(e)
						except for statements that are necessary to inform the public of the nature and
						extent of the prosecutor's action and that serve a legitimate law enforcement
						purpose, refrain from making extrajudicial comments that have a substantial
						likelihood of heightening public condemnation of the accused and exercise
						reasonable care to prevent 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
						3.6 or this Rule.
Comment:
(1) A prosecutor has the responsibility of a
						minister of justice and not simply that of an advocate. This responsibility
						carries with it specific obligations to see that the defendant is accorded
						procedural justice and that guilt is decided upon the basis of sufficient
						evidence. Precisely how far the prosecutor is required to go in this direction
						is a matter of debate and varies in different jurisdictions. Many jurisdictions
						have adopted the ABA Standards of Criminal Justice Relating to Prosecution
						Function, which in turn are the product of prolonged and careful deliberation
						by lawyers experienced in both criminal prosecution and defense. Applicable law
						may require other measures by the prosecutor and knowing disregard of those
						obligations or a systematic abuse of prosecutorial discretion could constitute
						a violation of Rule 8.4.
(2) In
						some jurisdictions, a defendant may waive a preliminary hearing and thereby
						lose a valuable opportunity to challenge probable cause. Accordingly,
						prosecutors should not seek to obtain waivers of preliminary hearings or other
						important pretrial rights from unrepresented accused persons. Paragraph (c)
						does not apply, however, to an accused appearing pro se with the approval of
						the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect
						who has knowingly waived the rights to counsel and silence.
(3) The exception in paragraph (d) recognizes
						that a prosecutor may seek an appropriate protective order from the tribunal if
						disclosure of information to the defense could result in substantial harm to an
						individual or to the public interest.
(4) Paragraph (e) supplements Rule 3.6, which
						prohibits extrajudicial statements that have a substantial likelihood of
						prejudicing an adjudicatory proceeding. In the context of a criminal
						prosecution, a prosecutor's extrajudicial statement can create the additional
						problem of increasing public condemnation of the accused. Although the
						announcement of an indictment, for example, will necessarily have severe
						consequences for the accused, a prosecutor can, and should, avoid comments
						which have no legitimate law enforcement purpose and have a substantial
						likelihood of increasing public opprobrium of the accused. Nothing in this
						Comment is intended to restrict the statements which a prosecutor may make
						which comply with Rule 3.6(b) or 3.6(c).