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 post-indictment pretrial rights; and

(d) make timely disclosure to the defense of all evidence known to the prosecutor that supports innocence 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.

Comment to RPC 3.8

The Court has varied paragraph (c) of the recommendation of the Debevoise Committee to conform more closely to decisional law. The Committee's report recommended without comment the adoption of Model Rule 3.8 as proposed by the ABA. The Kutak Commission emphasized in its recommendation the ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, "The Prosecution Function," § 3-3.2 (2d Tent. Draft 1979), citing generally United States v. Callabrass, 458 F.Supp. 964 (S.D.N.Y.1978). That case dealt with an agent's interrogation of a defendant after arrest on an indictment. The court found the claimed waiver of counsel ineffective and emphasized that more than a Miranda warning regarding waiver is required since Sixth Amendment rights are involved, not just Fifth Amendment rights. In addition, it appeared that the defendant was represented by counsel, although this was unknown to the agent. The court questioned whether it is ever proper for a government lawyer to initiate questioning of an indicted defendant who is known to be represented, citing Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246 (1964). See also State v. McCloskey, 90 N.J. IS (1982) (once a defendant has invoked the right to counsel, law enforcement officers may not initiate attempts to obtain waiver of the claim of counsel).

Taken in light of these references, the Court views the Kutak Commission as properly focusing on those circumstances in which the right to counsel attaches as a matter of law or request. Preindictment consent to search or interrogation does not invoke the same Sixth Amendment concerns. Limiting ethical proscription to the waiver of post-indictment pretrial rights such as Wade hearings or discovery will accord with a lawyer's general duty to an unrepresented adversary. The Court trusts that prosecutors are equally conscious of the Kutak Commission's observation that "(s]eeking a waiver from an unrepresented defendant often will have adverse consequences for both the defendant, who may lose important protections, and the criminal justice system, which becomes immersed in costly, time-consuming appeals," and will only do so when satisfied that the waiver is knowing, voluntary and intelligent.

Top  Return Table of Contents | Return to Main Table of Contents