National District Attorneys Association

National Prosecution Standards

Third Edition

with Revised Commentary

Table of Contents

1. The Prosecutor’s Responsibilities

2. Professionalism

4. Selection, Compensation, and Removal

5. Staffing and Training

6. Prosecutorial Immunity

2. Relations with State Criminal Justice Organizations

3. Relations with National Criminal Justice Organizations

5. Relations with Law Enforcement

7. Relations with Suspects and Defendants

8. Relations with Defense Counsel

10. Relations with Witnesses

11. Community-Based Programs

12. Prisons

13. Parole and Early Release

15. Relations with Funding Entity

16. Relations with the Public

1. Investigations Generally

3. Grand Jury Investigations

2. Charging

3. Diversion

4. Pretrial Release

6. Preliminary Hearing

7. Forfeiture

9. Discovery

10. Case Scheduling and Priority

11. Juvenile Justice

Part V. Propriety of Plea Negotiation and Plea Agreements

2. Availability for Plea Negotiation

3. Factors for Determining Availability and Acceptance of Guilty Plea

4. Fulfillment of Plea Agreements

5. Record of Plea Agreement

Part VI: Trial

2. Selection of Jurors

5. Presentation of Evidence

6. Examination of Witnesses

7. Objections and Motions

8. Arguments to the Jury

2. Probation

3. Community-Based Programs

1-3.3 Specific Conflicts

In all jurisdictions, including those prohibiting private practice by prosecutors:

a. The prosecutor should excuse himself or herself from the investigation and

prosecution of any former client involving or substantially related to the subject

matter of the former representation, unless, after full disclosure, the former client

gives informed written consent permitting the prosecutor’s involvement in the

investigation or prosecution.

b. The prosecutor should excuse himself or herself from the investigation and

prosecution of any matter where information known to the prosecutor by virtue of

a prior representation and subject to the attorney-client privilege would be

investigation or prosecution.

c. The prosecutor should excuse himself or herself from the investigation and

prosecution of any person who is represented by a lawyer related to the prosecutor

as a parent, child, sibling, spouse, or domestic partner, or who has a significant

financial relationship with the prosecutor.

d. The prosecutor should excuse himself or herself from any investigation,

prosecution, or other matter where personal interests of the prosecutor would

cause a fair-minded, objective observer to conclude that the prosecutor’s

neutrality, judgment, or ability to administer the law in an objective manner may

be compromised.

conflicts of interest. These procedures should include, but are not limited to:

a. The creation of firewalls and taint or filter teams to ensure that prosecutors with

a conflict are not improperly exposed to information or improperly disclose

information; and

b. Methods to accurately document the manner in which conflicts were handled to

ensure public trust and confidence in the prosecutor’s office.

1-3.5 Special Prosecutors

Where an actual or potential conflict of interest exists that would prevent the prosecutor’s

office from investigating or prosecuting a criminal matter, the prosecutor’s office should

not to be influenced by any actual or potential conflict;

b. The special prosecutor should have the authority only over the case or cases for

which he or she is appointed; and

c. Subject to the need to avoid the appearance of a conflict, a chief prosecutor and

his or her assistants and staff should give all appropriate assistance, cooperation,

and support to a special prosecutor.

Commentary

There are few topics of ethical orientation more pervasive than conflicts of interest.

Conflicts may arise not only from relationships with current or former clients, but also

Conflicts of interest problems are founded on the premise of the inability to serve two

masters with foreseeable different interests that compete or contend.

Conflicts present themselves differently to the prosecutor, compared to the private

practitioner, because the prosecutor does not initially select those subject to prosecution.

Nor is there usually a choice of which prosecution office should proceed.

The standards recognize potential conflicts in all jurisdictions involving former clients or

information obtained by virtue of former representation, and allow the prosecutor to

proceed on the case only if the individual makes a counseled waiver permitting the

appropriate assistance.

4. Selection, Compensation, and Removal

1-4.1 Qualifications

At the time of filing for election, appointment, or hiring, and for the duration of the term

of office or employment, a prosecutor shall be a member in good standing of the state’s

bar, except as otherwise provided by law. Chief prosecutors should be residents of the

jurisdiction that they serve.

a. The benefits to the jurisdiction of encouraging highly competent people to seek

a position of prosecutor with a career orientation; and

b. The level of compensation of people with analogous responsibilities in the

private practice of law, in private industry, and in public service.

1-4.3 Compensation of Assistant and Deputy Prosecutors

The compensation of the chief prosecutor should not serve as a basis for the highest

compensation of assistant prosecutors. Factors that should be considered in determining

compensation include, but are not limited to:

a. The benefits to the jurisdiction of encouraging highly competent people to seek

a position of prosecutor with a career orientation; and

b. The level of compensation of people with analogous responsibilities in the

In addition, factors that may not be considered in setting compensation include, but are

not limited to:

a. Characteristics of the prosecutor that are irrelevant to their ability to perform

the job and historically have been the basis of invidious discrimination, including

race, gender, religion, national origin, and sexual orientation;

b. Partisan political affiliation or activity; and

c. Revenues generated by the prosecution function—such as asset forfeitures or

collection of fees.

1-4.4 Benefits

Except in extraordinary circumstances, a prosecutor should not maintain, and should not

be asked to maintain, a workload that is inconsistent with the prosecutor’s duty to ensure

that justice is done in each case.

1-4.6 Removal

A chief prosecutor shall hold office during his or her term of office and shall only be

removed by procedures consistent with due process and governing law. Factors that may

not be taken into account in the removal of a prosecutor include, but are not limited to,

the following:

a. Characteristics of the prosecutor that are irrelevant to his or her ability to

1-4.7 Discharge of Assistant and Deputy Prosecutors

Assistant and deputy prosecutors are subject to removal according to the laws of their

jurisdictions and the procedures in their offices. Factors that may not be taken into

account in the removal of a prosecutor include, but are not limited to, the following:

a. Characteristics of the prosecutor that are irrelevant to his or her ability to

perform the job and historically have been the basis of invidious discrimination,

including race, gender, religion, national origin, and sexual orientation.

b. Partisan activities that are legal and ethical unless those activities interfere with

the efficient administration of the office.

c. The refusal to participate in partisan activities.

Given the preference for involvement with the represented community, the need to be

available for consultation with law enforcement personnel, and the need to be available in

the event of an emergency or unusual situation, the chief prosecutor should be a resident

of his or her jurisdiction. Even though, in some jurisdictions, disbarment of the

prosecutor would not disqualify him or her from holding the office, the public interest

would dictate resignation in that situation.

Provision of an adequate salary is an absolute necessity if the office of prosecutor is to

function at maximum efficiency. An adequate salary is essential for attracting capable

Advisory Commission on Criminal Justice Standards and Goals, Courts 230 (1973):

For purposes of salary, the prosecutor should be considered to be on the

same level as the chief judge of the highest trial court of the local criminal

justice system. Both positions require the exercise of broad professional

discretion in the discharge of the duties of the offices. It is therefore

reasonable that the compensation for the holders of these offices have the

same base.

Provision for an adequate salary level is also essential to reduce the rapid turnover of

local prosecutors. The skills and judgment required by a prosecutor are developed with

A prosecutor has the responsibility to seek justice in every case. Ensuring that a matter

has been properly investigated and evaluating how it should be handled are time

consuming. In those cases that go to trial, the preparation required to proceed effectively

is filled, in many instances, with education regarding experts in various fields and

creation of technological presentations and exhibits which are increasingly necessary to

effectively explain the prosecution’s theory of the case.

Because of the need to thoroughly investigate, evaluate, prepare and try a variety of

cases, prosecutors should not be overwhelmed by large numbers of cases needing

disposition. If they are, the quality of representation afforded the people suffers and the

difficulty in retaining good, experienced prosecutors increases.

process. Equally important is the necessity that such removals not be undertaken because

of prejudice against the prosecutor’s race, gender, religion, national origin or sexual

orientation.

Engaging in partisan political activities, or the refusal to engage in the same should not be

a basis for removal unless the activity interferes with the efficient operation of the office.

Prosecutors should be mindful of their responsibility to seek justice. Should a prosecutor

find himself or herself in a situation in which the public trust in the office has diminished

to the extent that he or she can no longer fulfill that primary responsibility, resignation

to seek justice despite the threats of civil litigation that, even if totally unfounded, can

consume time and resources to defend.

1-5.1 Transitional Cooperation

When an individual has been elected or appointed prosecutor, the incumbent prosecutor

should, when practicable, fully cooperate in an in-house orientation of the incoming

prosecutor to allow for an effective transition consistent with the principles of

professional courtesy. This cooperation may include, when possible, designating the

1-5.2 Assistant and Deputy Prosecutors

Assistant and deputy prosecutors, by whatever title, should be selected by the chief

prosecutor and should serve at the chief prosecutor’s pleasure, unless otherwise provided

by law or contract.

a. Assistant and deputy prosecutors should be active members of the state bar in

good standing, except as otherwise provided by law.

b. Assistant and deputy prosecutors should be selected on the basis of their

achievements, experience, and personal qualifications related to their ability to

successfully perform the work of the prosecutor’s office. Personal or political

considerations that have no legitimate bearing on the ability to perform the

c. Absent unusual circumstances, a chief prosecutor should seek a commitment

for a minimum number of years of employment at the time of hiring or promoting

assistant or deputy prosecutors, conditioned upon continuing good performance.

1-5.3 Orientation and Continuing Legal Education

At the time they commence their duties and at regular intervals thereafter, prosecutors

should participate in formal training and education programs. Prosecutors should seek out

continuing legal education opportunities that focus specifically on the prosecution

function and:

a. Chief prosecutors should ensure that all prosecutors under his or her direction

c. Prosecutors with supervisory responsibilities should include in their continuing

training the study of management issues, such as staff relations and budget

preparation.

d. The chief prosecutor should ensure that each new prosecutor becomes familiar

with these standards, as well as rules of ethical conduct and professionalism that

have been adopted in the jurisdiction.

e. Chief prosecutors should identify one or more sources, both within and outside

the office, to which the prosecutors can turn for guidance on questions related to

ethical conduct and professionalism.

f. Prosecutors should be diligent in meeting or exceeding requirements for

1-5.4 Office Policies and Procedures

Each prosecutor’s office should develop written and/or electronically retrievable

statements of policies and procedures that guide the exercise of prosecutorial discretion

and that assist in the performance of those who work in the prosecutor’s office.

Commentary

Criminal investigations, trial preparation, trials, and the day-to-day operation of the

prosecutor’s office do not coincide with election cycles. Therefore it is important for the

efficient representation of the people that the transition from one prosecutor’s term to

orient an incoming chief prosecutor is through his or her appointment as a special

prosecutor, so that briefings on confidential matters can be accomplished. It is important

for both the outgoing and incoming prosecutors to remember that his or her responsibility

to seek justice for the people of the community may require the setting aside of campaign

differences in a professional manner.

In selecting assistant or deputy prosecutors, the chief prosecutor, in addition to

confirming that the prospective prosecutors are members in good standing of the bar of

the jurisdiction, when appropriate, should carefully examine the assets they would bring

to the office. An assessment of their educational background, work experience, judgment,

discretion of the chief prosecutor. Because many prosecutors are hired immediately after

law school they require an extended period of training and experience before they can

deliver their best work for their client. Therefore the time commitment assures that the

prosecutor’s office receives some benefit for the time and resources spent on the training

process. Even for those prosecutors entering the office with some other relevant

experience, the transition from another type of practice to prosecution takes some time. In

addition, in some instances the time required for potential conflicts of interest to lessen

and allow for the new prosecutor to function fully will justify the commitment

requirement.

Conceptually, staff training can be divided into two broad categories. The first, which

might be termed “orientation,” would seek to provide new assistants or deputies, as well

as chief prosecutors, with an understanding of their responsibilities in the criminal justice

system, and with the technical skills they will be required to utilize. Orientation for the

chief prosecutor should center on office management skills, especially for larger

jurisdictions. A basic orientation package for assistants could include familiarization with

office structure, procedures, and polices; the local court system; the operation of local

police agencies; and training in ethics, professional conduct, courtroom decorum, and

relations with the court and the defense bar.

continuing legal education requirements of his or her jurisdiction. The content of the

training should be relevant to the duties of the prosecutor. For the chief prosecutor and

other prosecutors in management positions, training on personnel, management and

budget issues would be appropriate. For other prosecutors, concentration on substantive

law, rules of evidence, forensic evidence, trial advocacy, and other matters relevant to

their duties should be sought. While some of the largest offices have training divisions

which can provide much of the training needed, the chief prosecutor should be cognizant

that it is important to have exposure to what is going on throughout the national criminal

justice community. Prosecutors benefit from this exposure because it allows them to stay

current regarding new defenses, jointly address concerns confronting prosecutors, and

that all prosecutors in his or her office have a working knowledge of the ethical rules and

professional codes applicable to the jurisdiction as well as these standards. In addition,

the chief prosecutor should work to create an atmosphere in which the discussion of

ethical and professional considerations is encouraged. The chief prosecutor should also

make known persons and procedures that can be utilized if more private consultation is

desired.

By calling for the allocation of funds in the prosecutor’s budget, this standard may help to

emphasize the essential role of training in assuring efficient and effective performance of

prosecutorial duties while disabusing the notion that training is a frill or an extra to be cut

the emphasis is on assuring that assistant prosecutors and other personnel perform in a

manner consistent with the policy of the chief prosecutor. Given that the individual

assistants must be delegated the authority to apply their best judgment to the facts of

particular cases, achieving the goal of uniformity protects a victim or accused from

receiving substantially different treatment because the case was assigned to one

individual in the office and not to another.

It is recognized that a distinction exists between the operation of a small office and a

large office. In a small office, the long personal association of a prosecutor’s staff will

have created a completely shared understanding of the tenets of each prosecutor’s

individual policies. In those cases, the written policy may serve as no more than a cross-

reference and as a guard against any misunderstanding. Thus, it may not always be

and a variety of staff positions, or where assistants serve part-time and operate in widely

separated locales within the jurisdiction, the office statement of policies and procedures

should represent an enormous stride toward uniformity and continuity in the execution of

prosecutorial discretion.

Another benefit in the adoption of office policies and procedures will be a more effective

orientation and training of new staff. A new attorney, paralegal, clerical employee, or

intern may bring to the job little or no experience in the operations of a prosecutor’s

office. No matter what the size of the office, existing staff may already be overburdened,

with little or no time to devote to thorough training of new employees. Even taking the

procedures can be improvement of the knowledge and technical proficiency of staff

members in performing the various tasks required in the prosecutor’s office. A portion

aimed at clerical staff could explain how and when various office forms are to be utilized,

and give instruction on the operation of office filing and statistical systems. Items of

more relevance to professional legal personnel could detail the steps to be followed in

approving a warrant, interviewing a witness, filing a motion, etc. Other sections might

even give precise directions as to how to conduct a voir dire, jury trial, grand jury

proceeding, or preliminary hearing. Even where information is already available in one

format in the office, such as state criminal codes or reported court decisions, this

information can be reorganized or restructured for easier access and practical use.

Prosecutors without statements of policies and procedures should consult with their local,

state, and national associations and other prosecution offices to lessen the burden of the

initial development.

1-6.1 Scope of Immunity

When acting within the scope of his or her prosecutorial duties, a prosecutor should enjoy

the fullest extent of immunity from civil liability. The chief prosecutor should take steps

to see that all costs, including attorneys’ fees and judgments, associated with suits

Commentary

In Imbler v. Pachtman, 424 U.S. 408 (1976), the U.S. Supreme Court ruled that

prosecutors enjoy absolute immunity from Civil Rights Actions brought under Section

1983, 42 U.S.C., when acting within the scope of their duties in initiating and pursuing a

criminal prosecution and in presenting the state’s case. The Court noted that although

such immunity leaves the genuinely wronged criminal defendant without civil redress

against a prosecutor whose malicious or dishonest action deprives him of liberty, the

alternative of qualifying a prosecutor’s immunity would outweigh the broader public

investigative duties falling primarily within the police function.

Although there has been a multitude of case law subsequent to Imbler discussing the

prosecutor’s immunity for “administrative” and “investigative” duties, no bright line rule

has been established.

In order to ensure that prosecutors are free to vigorously and fearlessly perform their

essential duties, the prosecutor’s funding source should provide the costs, including

attorney fees and judgments associated with civil suits against the prosecutor and his or

her staff. No prosecutor should be expected to function without full coverage for actions

such an advisory capacity to promote lawful investigatory methods that will withstand

later judicial inquiry. The prosecutor should encourage law enforcement officers to seek

legal advice as early as possible in the investigation of a criminal case. Where possible,

the prosecutor should identify a primary point of contact within the prosecutor’s office to

receive and refer legal inquiries from particular law enforcement agencies.

Commentary

The maintenance of good relations between the prosecuting attorney and the law

enforcement agencies within the community is essential for the smooth functioning of the

positive exchange of ideas and information.

The criminal justice system, of which the police are only one element, is a structure of

law. Many times this structure suffers from seemingly contradictory court decisions,

public pressure, and the problems that arise in trying to balance effective law

enforcement and the protection of the rights of individuals. The police face many of these

problems. To alleviate these problems, the prosecutor could educate the police in the area

of pre-trial criminal procedure, including search and seizure law, the arrest process, the

use of force, and interrogation. In particular, with respect to the various exclusionary

rules pertaining to the admissibility of evidence, the prosecutor has a responsibility to

The prosecutor has a large stake in the training and professionalization of local law

enforcement. Its handling of a case is often crucial to the prosecutor’s success. Therefore,

the prosecutor should encourage the local police to participate to the fullest extent

possible in training programs operated on state, regional, and national levels. If such a

program does not exist or is not available to police in the jurisdiction, it is in the

prosecutor’s best interest to promote the development of such a program. Such training

should result in more successful prosecutions. Besides the face value effectiveness of

police training, it is an excellent opportunity to establish personal rapport and

communications with individual police officers.

perform.

Furthermore, the prosecuting attorney may be restricted from any active participation in

the police function by the threatened loss of immunity to civil damages in instances

where participation is beyond the scope of advisor and, therefore, not an integral part of

the judicial process. The prosecutor must always be cognizant that his quasi-judicial

immunity afforded by the courts in civil liability suits is limited to actions taken in

advancement of the traditional prosecution function.

The responsibility for sound communications between the prosecutor and law

enforcement agencies is mutual. It is a goal of the prosecutor to keep police informed of

developments in investigations, trials, and related matters. Both entities must seek to

criminal matters is the development and use of a uniform information sharing system.

Such systems ensure that all information necessary for successful investigations and

prosecutions is available to all concerned parties in a timely manner.

2-6.1 Judicial Respect

A prosecutor shall display proper respect for the judicial system and the court at all times.

2-6.2 Respect in the Courtroom

advantage of any personal relationship with a judge, or by engaging in any ex parte

communication with a judge on the subject matter of the proceedings other than as

authorized by law or court order.

2-6.4 Suspicion of Criminal Misconduct

When a chief prosecutor has a reasonable suspicion of criminal conduct by a member of

the judiciary, the prosecutor should take all lawful investigatory steps necessary to

substantiate or dispel such suspicions and, if substantiated, should initiate prosecution or

refer the case to another prosecutor’s office for review or appoint a special prosecutor in

the case.

judicial conduct authority in his or her jurisdiction.

2-6.6 Application for Recusal

When a prosecutor reasonably believes that it is warranted by the facts, circumstances,

law, or rules of judicial conduct, the prosecutor may properly seek that judge’s recusal

from the matter.

Commentary

The prosecutor is an officer of the court, a public official accountable to those of his

jurisdiction, and a hub of the criminal justice system. All of these dimensions influence

the prosecutor’s relations with the court.

individuals of diverse talents, skills, and temperaments. While some are of superior

character, others suffer from human frailties not uncommon in our society. Thus, while

the prosecutor needs to have proper respect for the institution of the judiciary, at the same

time, he has a responsibility to guard against the infrequent abuses from those who fail to

honor their responsibilities while serving on the bench.

While this approach may require a delicate balance, it is necessary both inside and out of

the courtroom. As is true of all National Prosecution Standards, effective justice is the

paramount issue. Therefore, the prosecutor should neither undermine respect for the

judicial function nor in any manner attempt to unfairly influence the court.

when there is reasonable suspicion of criminal activity by a member of the judiciary. If

the investigation dictates prosecution, the prosecutor must take the appropriate steps to

see that it is commenced.

The standards make it clear that the prosecutor has responsibilities not only when

misconduct is at the level of criminal activity, but also when a judge demonstrates the

inability to carry out his duties with a minimal level of competence.

his counsel when either (1) counsel has consented to the communication or (2) the

communication is authorized by law or court rule or order.

b. A prosecutor may communicate with a witness who is also charged as a

defendant in an unrelated criminal matter about the witness’s upcoming testimony

without the advance permission of the witness’s attorney so long as the prosecutor

does not discuss the criminal charges pending against the witness.

2-7.2 Communication with Unrepresented Defendants

When a prosecutor communicates with a defendant charged with a crime who is not

represented by counsel, the prosecutor should make certain that the defendant is treated

with honesty, fairness, and with full disclosure of his or her potential criminal liability in

the matter under discussion.

under the circumstances, the prosecutor should advise the defendant of his or her

rights.

b. If a prosecutor is engaged in communications with a charged defendant who is

not represented by counsel and the defendant changes his or her mind and

expresses a desire to obtain counsel, the prosecutor should terminate the

communication to allow the defendant to obtain counsel or to secure the presence

of counsel. When appropriate, the prosecutor should advise the defendant on the

procedures for obtaining appointed counsel.

2-7.3 Unsolicited Communications

However, the situation may arise where a defendant who has been charged with a crime

is represented by counsel, but requests to communicate with a prosecutor on the subject

of the representation out of the presence of his or her counsel. Before engaging in such

communication, the prosecutor should first ascertain whether the defendant has expressed

a valid reason to communicate with the prosecutor without the presence of his or her

attorney, and if so should thereafter communicate with the defendant only if authorized

by law or court order.

2-7.4 Plea Negotiations

If a prosecutor enters into a plea negotiation with a defendant who is not represented by

2-7.5 Right to Counsel

If a prosecutor is engaged in communications with a defendant who is not represented by

counsel or whose counsel is not present, and the defendant changes his mind and

expresses a desire to obtain counsel or to have counsel present, the prosecutor should

terminate the communication in order to allow the defendant to obtain counsel or to

secure the presence of his or her counsel. When appropriate, the prosecutor should advise

the defendant on the procedures for obtaining appointed counsel.

2-7.6 Communications with Represented Persons During Investigations

A prosecutor performing his or her duty to investigate criminal activity should neither be

or order. A prosecutor may advise or authorize a law enforcement officer to engage in

undercover communications with an uncharged, represented suspect in the absence of the

suspect’s counsel, provided such a communication is authorized by law or court order.

Commentary

Relations with defendants is a sensitive area of a prosecutor’s function. There must be a

balancing of the general desirability to have defendants represented by counsel in their

dealings with prosecutors and the right of defendants to represent themselves in traffic

cases and minor misdemeanors, and even in felonies or serious misdemeanors under

where couriers are caught transporting large amounts of drugs or cash, defendants may

have attorneys appear, bail them out, and begin representation without the express

authority of the defendant. Defendants complain that these attorneys are working for

other interests, but they are afraid to discharge them because of actual or assumed danger.

Similarly, a defendant may be the officer, employee, or agent of a corporation and face

individual charges in addition to those against the corporation, where counsel for the

corporation represents that he is also counsel for the individual. This situation may exist

without the individual’s knowledge or without the individual’s knowledge of an inherent

conflict of interest in the representation.

prosecutors might be advised to seek authority from the court or the appointment of

“shadow counsel” to interview the defendant and report to the court concerning what

action might be appropriate. Some jurisdictions may provide other legal avenues that a

prosecutor might use in such circumstances.

Prosecutors also often receive unsolicited letters from defendants. They should have the

right to receive them and use them in any legal manner.

The standard provides that prosecutors communicating with unrepresented defendants

should be certain that they are treated fairly and that defendants be made aware of what

could happen to them as the result of whatever actions are taken. For example, suppose a

defendant wishes to become a witness for the state in return for a recommendation by the

the case) and that the defendant might indeed be sentenced to a jail term, even with his

cooperation on behalf of the state. If local rules or the legal circumstances require

Miranda-type warnings be given, the prosecutor should so advise the defendant before

any conversation. The standard assumes that a prosecutor will tell a defendant if he

intends to use the communications against him. There are circumstances in which a

prosecutor will agree to receive information from a defendant but not use it against him.

However, to ensure fairness to an unrepresented defendant, he should not be subjected to

the liability of incriminating statements without a prior warning and waiver of rights.

The standard recognizes that many defendants wish to negotiate a plea with the

legal requirement of fulfilling a defendant’s desire for counsel—even if he originally

expressed a desire not to be represented or to have counsel present and assisting him—or

to obtain counsel if he cannot afford to pay for representation. The defendant’s wishes in

this regard are recognized as paramount. The prosecutor should make a record of any

communications with represented defendants that take place in the absence of counsel.

Prosecutors have a duty to investigate criminal activity. This may involve communicating

with witnesses who are also defendants or suspects in unrelated cases. Ordinarily such

communications must be made with the approval of the witness/defendant’s counsel

because the witness is seeking some benefits in the “subject matter of the representation.”

communicate with the suspect so long as the communication is specifically “authorized

by law.”

In some jurisdictions, these standards may be inconsistent with case precedent and/or

rules of professional conduct. The prosecutor must proceed with caution and seek to

avoid any action that would jeopardize the case or result in misconduct under applicable

rules.

8. Relations with Defense Counsel

2-8.1 Standards of Professionalism

The prosecutor should comply with the provisions of professionalism as identified in

uniformity of fair dealing among different defense counsel.

2-8.2 Propriety of Relations

In all contacts with members of the defense bar, the prosecutor should strive to preserve

proper relations.

2-8.3 Cooperation to Assure Justice

The prosecutor should cooperate with defense counsel at all stages of the criminal

process to ensure the attainment of justice and the most appropriate disposition of each

case. The prosecutor need not cooperate with defense demands that are abusive,

2-8.5 Suspicion of Criminal Conduct

When a prosecutor has reasonable suspicion of criminal conduct by defense counsel, the

prosecutor has a responsibility to take such action necessary to substantiate or dispel such

suspicion.

2-8.6 Responsibility to Report Ethical Misconduct

When an assistant or deputy prosecutor has knowledge of ethical misconduct by defense

counsel that raises a substantial question as to the attorney’s fitness to practice law, the

prosecutor should report such conduct to his or her supervisor. A chief prosecutor who

has knowledge of ethical misconduct by defense counsel which raises a substantial

2-8.7 Avoiding Prejudice to Client

When the prosecutor believes that the defense counsel has engaged in misconduct,

remedial efforts should be directed at the attorney and not at his or her client. The

prosecutor should at all times make efforts to ensure that a defendant who is not involved

in misconduct is not prejudiced by the unlawful or unethical behavior of his or her

attorney.

Commentary

As with the judiciary, appropriate professional consideration is due opposing counsel. All

implied animosity or disrespect. The prosecutor should strive to maintain uniformity of

fair dealing with all defense counsel and should endeavor to not allow any prior

animosity or bad feelings toward a particular defense attorney to work to the detriment of

that attorney’s client.

In the spirit of seeking justice in all cases, the prosecutor should cooperate with defense

counsel in providing information and other assistance as volunteered by the prosecutor or

reasonably requested by defense counsel. In the event defense counsel makes demands

that are abusive, frivolous or made solely for the purpose of delay, the prosecutor need

not cooperate with such demands and may seek court guidance on what must be

investigate and take whatever additional action is dictated by the result of the

investigation.

The standard requires that an assistant or deputy prosecutor who has knowledge of ethical

misconduct by defense counsel which raises substantial question as to the attorney’s

fitness to practice law report such conduct to his or her supervisor. The assistant or

deputy prosecutor needs to be aware that in some jurisdictions, such action may not be

sufficient to comply with the ethical rules, and failure to report the defense attorney’s

misconduct, if the chief prosecutor does not, may, in itself, be misconduct by the assistant

prosecutor. The timing of such report should be coordinated so as not to prejudice the

individual. Such reasoning is fallacious, however, when viewed in relation to the purpose

of the adversary proceeding and the safeguards already provided therein. The courtroom

is not a stage but a forum, and uniformity of trial decorum by defense and prosecuting

attorneys should be maintained by the court to prevent undue influence on judge and jury

that might result from theatrical behavior. The prosecutor should be able to bring to the

court’s attention the failure to maintain such uniformity and should maintain the high

standards of conduct befitting a professional advocate in public service.

9. Relations with Victims

2-9.1 Information Conveyed to Victims

Victims of violent crimes, serious felonies, or any actions where it is likely the victim

if required by law, including, but not limited to, the following:

a. Acceptance or rejection of a case by the prosecutor’s office, the return of an

indictment, or the filing of criminal charges;

b. A determination of pre-trial release of the defendant;

c. Any pre-trial disposition;

d. The date and results of trial;

e. The date and results of sentencing;

f. Any proceeding within the knowledge of the prosecutor which does or may

result in the defendant no longer being incarcerated, including appellate reversal,

parole, release, and escape, unless a legal obligation to inform the victim of such

prosecutor’s office should provide an orientation to the criminal justice process for

victims of crime and should explain prosecutorial decisions, including the rationale used

to reach such decisions. Special orientation should be given to child and spousal abuse

victims and their families, whenever practicable.

2-9.3 Victim Assistance

To the extent feasible and unless a legal obligation to provide such assistance is imposed

by law on another governmental entity, the chief prosecutor should develop policies and

procedures for providing services to victims of crimes, including, but not limited to the

following:

e. Assistance with necessary transportation and lodging arrangements;

f. Assistance in reducing the time the victim has to wait for any court appearance

to a minimum; and

g. Assistance in reducing overall inconvenience whenever possible and

appropriate.

The prosecutor should be aware of any obligations imposed by victims’ rights legislation

in his or her particular jurisdiction.

2-9.4 Cooperative Assistance

The prosecutor should work with other law enforcement agencies to:

b. Assist in the protection of a victim’s right to privacy regarding a victim’s

Social Security number, birth date, address, telephone number, place of

employment, name (when the victim is a minor or a victim of sexual assault,) or

any other personal information unless either a court finds it necessary to that

proceeding or disclosure is required by law.

2-9.5. Facilities

Whenever possible, the chief prosecutor should take steps to ensure that victims have a

secure and comfortable waiting area that avoids the possibility of making contact with the

defendants or friends and families of the defendants.

2-9.7 Victim Assistance Program

To the extent feasible, the chief prosecutor should develop and maintain a victim

assistance program within the staffing structure of the office to provide services and give

assistance to victims of crime.

2-9.8 Victim Protection

The prosecutor should be mindful of the possibility of intimidation and harm arising from

a victim’s cooperation with law enforcement. The prosecutor should be aware of

programs available in his or her jurisdiction to protect witnesses to crime, and should

make referrals and recommendations for program participation where appropriate.

b. Trial dates and the scheduling of that witness’s appearance.

offenders and the standard takes an unequivocal position against it. The solution for

prison overcrowding and related problems lies with the appropriate legislative bodies but

is not to be found in simply releasing offenders. The prosecutor should support legislative

proposals that solve this problem in the appropriate manner by allocating additional

public funds for the construction and maintenance of needed facilities. Likewise, the

prosecutor should oppose every program of early release based primarily on the problems

facing our correctional system. Inappropriate release of offenders undermines every

advance achieved in improving the criminal justice system.

Those prosecutors charged with the commitment of sexually dangerous persons should

to release.

2-14.1 Media Relations

The prosecutor should seek to maintain a relationship with the media that will facilitate

the appropriate flow of information to and from the public. An appropriate and

professional relationship with the media is necessary to promote public accountability

and transparency in government.

Subject to Standard 2-14.4 and applicable rules of ethical conduct, information may be

released by the prosecution if such release will aid the law enforcement process, promote

public safety, dispel widespread concern or unrest, or promote confidence in the criminal

justice system. The prosecutor should refrain from making extrajudicial comments before

or during trial that promote no legitimate law enforcement purpose and that serve solely

to heighten public condemnation of the accused.

2-14.3 Information Appropriate for Media Dissemination by Prosecutors

Prior to and during a criminal trial the prosecutor may comment on the following matters:

a. The accused’s name, age, residence, occupation, family status, and citizenship;

diligence and professionalism of the law enforcement personnel in identifying and

apprehending the accused;

e. The circumstances immediately surrounding the arrest, including the time and

place of arrest, the identity of the arresting officer or agency, resistance, pursuit,

possession and use of weapons, and a description of items seized at the time of

arrest or pursuant to a search warrant; and

f. Information contained in a public record, the disclosure of which would serve

the public interest.

2-14.4 Restraints on Information

Prior to and during a criminal trial the prosecutor should not make any public,

extrajudicial statement that has a substantial likelihood of materially prejudicing a

statements about the following matters, unless the information is part of the public record

of the criminal proceeding:

a. The character, reputation, or prior criminal conduct of a suspect, accused

person or prospective witness;

b. Admissions, confessions, or the contents of a statement or alibi attributable to a

suspect or accused person;

c. The performance or results of any scientific tests or the refusal of the suspect or

accused to take a test;

d. Statements concerning the credibility or anticipated testimony of prospective

witnesses;

limited to statements reasonably necessary to mitigate the effect of undue prejudice

created by the public statement of another. In no event should a prosecutor make

statements prohibited by Standard 2-14.4 or applicable rules of ethical conduct.

2-14.6 Law Enforcement Policy on Information

The prosecutor should assist law enforcement and other investigative agencies in

understanding their statutory responsibilities with respect to the release of criminal justice

information. The prosecutor should also assist in the training of law enforcement

agencies within his or her jurisdiction on subject matters to avoid when discussing

pending criminal investigations or prosecutions with the media.

2-14.8 Verdicts

A prosecutor should not make any public statement after trial that is critical of jurors, but

may express disagreement with or disappointment in the jury verdict.

Commentary

A primary requirement for the proper functioning of the prosecutor’s office is the

establishment of public trust in the ability of the prosecutor to effectively represent the

public in seeking to attain justice. In order to maintain that public trust, the prosecutor

must be accountable for his or her actions. The media is a primary player in testing that

performance of the law enforcement officers and prosecutors in the conduct of the

investigation and the court proceedings; and, the results of court proceedings.

Because of the prosecutor’s unique role as a representative of all of the people in the

quest for justice, it would be unfair for him or her to diminish the rights of a defendant to

a trial by an unprejudiced jury of his or her peers by broadcasting information through the

media where it would go untested by the time-tested procedures incorporated into our

criminal justice system.

At the same time, as a representative of the people with the duty to assure that justice is

training, the prosecutor proactively reduces the possibility of comments by law

enforcement personnel that are in conflict with the law and legal rules. By that means, the

prosecutor also reduces the incidents of challenges to venue and other matters relating to

the ability of a defendant to receive a fair trial. The content and extent of a prosecutor’s

comments regarding judicial decisions are some of the most litigated ethical provisions.

At a minimum, a prosecutor cannot knowingly make false or reckless statements about

the integrity or qualifications of a judge and jury verdicts. Further, a prosecutor may not

engage in conduct with a juror designed to alter that jurors conduct in future jury service.

15. Relations with Funding Entity

The budget for prosecution should be independent of and unrelated to revenues resulting

from law enforcement and criminal justice activities, such as fines, forfeitures and

program fees. The prosecutor may expend revenues from forfeited assets only in

accordance with statute or court order.

Commentary

The basic premise of this standard is adequate funding. Little can happen in the way of

system improvements in general, and the prosecutor’s office in particular, without

adequate funding.

An expectation persists among funding bodies that funds for law enforcement can be

with the relatively recent state and federal forfeiture statutes. Such remedies were never

intended to be primary sources of revenue, and the notion that they can be “budgeted”

into criminal justice agencies is totally misguided. To the extent that such remedies

provide some funds for law enforcement agencies, this benefit is at best collateral to their

primary purpose. Such revenues are not predictable and, therefore, it is doubly wrong for

funding sources to rely upon them when considering budget requests from prosecutors.

16. Relations with the Public

2-16.1 Community Organizations

to do so, the chief prosecutor should assign an appropriate staff member(s) to act as

liaison to such organizations and provide qualified speakers from the prosecutor’s office

to address and appear before such groups on matters of common interest.

2-16.3 Public Education

The chief prosecutor should use all available resources to encourage citizen involvement

in the support of law enforcement and prosecution programs and issues. The chief

prosecutor should educate the public about the programs, policies, and goals of his or her

office and alert the public to the ways in which the public may be involved and benefit

from those programs, policies, and goals.

Commentary

Since the prosecutor’s work is intimately involved with crime in the community, the

prosecutor can contribute significantly to crime prevention by lending personal support

and the support of the prosecutor’s office to existing community crime prevention

programs. Further, the prosecutor can lend expertise to criminologists, city planners, and

others as they make plans for the growth and development of the community in a way

best suited to deter criminal activity. The standard has been developed to serve as a guide

to prosecutors in implementing their role in community crime prevention. It recognizes

the need for the prosecutor to not only interact with community crime prevention and

17. Relations with Non-Governmental Entities

2-17.1 Generally

In all dealings with a non-governmental entity, the chief prosecutor should place the

public interest above all other considerations.

2-17.2 Financial and Resource Assistance

a. Where permitted by law, a prosecutor’s office may accept financial or resource

assistance from a non-governmental source when such assistance is specifically

governmental source will create the appearance of undue influence;

d. The chief prosecutor should have office procedures in place that protect the

independent exercise of discretion of the office from the undue influence of a

non-governmental resource that has provided assistance to the office during the

investigation and prosecution of specific cases or types of cases. These procedures

should include requirements for strict bookkeeping and accounting of any

assistance received, whether financial or resource assistance, and if required by

law, disclosure procedures.

Commentary

not allow the assistance to interfere with his or her independent exercise of prosecutorial

discretion.

1. Investigations Generally

2. Warrant Review

3. Grand Jury Investigations

4. Grants of Immunity

3-1.2 Fairness in Investigations

A criminal investigation should not begin or be continued if it is motivated in whole or

part by the victim or perpetrator’s race, ethnicity, religion, sexual orientation, or political

affiliation unless these factors are an element of a crime or relevant to the perpetrator’s

motive. Nor should an investigation be motivated, in whole or significant part, by

partisan political pressure or professional ambition or improper personal considerations.

3-1.3 Prosecutor’s Responsibility for Evidence

A prosecutor is ultimately responsible for evidence that will be used in a criminal case. A

prosecutor who knows or who is aware of a substantial risk that an investigation has been

3-1.5 Undercover Investigations

Although prosecutors may not normally make false statements or engage in conduct

involving deception, a prosecutor may, to the extent permitted by law, engage in or direct

law enforcement investigations that involve such conduct. A prosecutor should take all

reasonable steps to ensure that any such investigations do not create an unnecessary risk

of harm to innocent parties, perpetuate a fraud on the court, or interfere with a

defendant’s constitutionally protected right to counsel or right to a fair trial. Nothing in

this standard precludes a prosecutor from engaging in a duly authorized investigation of

judicial or court officers, or members of the bar.

and carry out other duties as assigned by the prosecutor. The chief prosecutor should seek

investigative resources from appropriate funding authorities.

Commentary

While the vast majority of criminal investigations are undertaken by law enforcement

agencies, there are times when the prosecutor must use his or her authority to initiate or

continue an investigation. Some instances where such action by the prosecutor would be

appropriate are: where the law enforcement agency that would normally conduct the

investigation has a conflict of interest; where the investigation has been handled

not have sufficient resources to conduct the investigation.

Given the prosecutor’s responsibility to seek justice for all the people, there are axioms

regarding investigations that follow. A prosecutor should not conduct an investigation

motivated by any characteristics of the victim or perpetrator that are categories irrelevant

to the elements of the crime or the motive therefore. The prosecutor should not conduct

an investigation in an illegal or improper manner, nor should he or she allow his or her

agents to do so.

Undercover investigations are at times the only effective way of obtaining evidence by

investigative responsibilities, be they local law enforcement or others, advise the

prosecutor of investigations in the jurisdiction.

2. Warrant Review

3-2.1 Search and Arrest Warrant Review

The prosecutor’s office should develop and maintain a system for providing law

enforcement with the opportunity for a prompt legal review of search and arrest warrant

applications before the applications are submitted to a judicial officer.

prosecutor’s jurisdiction on the law applicable to the issuance and execution of search

and arrest warrants.

Commentary

Given the number and nature of requirements for the issuance of arrest, search and

surveillance warrants that will withstand motions to suppress and other legal attacks, the

role of the prosecutor in providing legal assistance to law enforcement agencies is

essential. The standard suggests the prosecutor’s review of warrants and applications for

the same, whenever practical. This review would assure propriety that will enhance the

probability of the conviction of the guilty.

resulting warrants would withstand defense challenges.

3. Grand Jury Investigations

3-3.1 Scope of Grand Jury Investigations

Unless the law of the jurisdiction specifically permits otherwise, a prosecutor should not

use a grand jury investigation to:

a. Assist solely in a non-criminal matter; or

b. Gather evidence solely for the use at trial against a defendant who already has

been charged by indictment or information.

recommend to the grand jury that the witness be given reasonable opportunities to consult

with counsel.

3-3.3 Subpoenaing the Target of an Investigation

In jurisdictions where it is permissible to call a person to testify before the grand jury

even though the person is the target of the investigation, the following procedures should

apply:

a. The chief prosecutor or his or her designee should approve all efforts to have a

target of the investigation testify before a grand jury;

b. The target should be informed in writing of his or her status before any grand

informed of his or her rights as provided in Standard 3- 3.4.

3-3.4 Grand Jury Warnings

Before questioning a grand jury witness who is the target or subject of the investigation, a

prosecutor should warn the witness as follows:

a. If the truthful answer to a question would tend to incriminate you in criminal

activity, you may refuse to answer the question;

b. Anything you say may be used against you by the grand jury or in a later legal

proceeding;

c. If you have retained counsel with you, the grand jury will grant your reasonable

requests to consult with your counsel before answering a question.

3-3.5 Evidence Before the Grand Jury

Unless otherwise required by the law or applicable rules of ethical conduct of the

jurisdiction, the following should apply to evidence presented to the grand jury:

a. A prosecutor should disclose any credible evidence of actual innocence known

to the prosecutor or other credible evidence that tends to negate guilt, as required

by law or applicable rules of ethical conduct;

b. A prosecutor should not present evidence to the grand jury that the prosecutor

knows was obtained illegally by law enforcement;

c. In the absence of a valid waiver, a prosecutor should not seek information from

incrimination rather than provide any relevant information, the prosecutor should

not present the witness to the grand jury unless the prosecutor plans to challenge

the assertion of the privilege or to seek a grant of immunity. The grand jury may

be informed of the reason the witness will not appear;

f. The prosecutor should inform the grand jury that it has the right to hear in

person any available witness or subpoena pertinent records;

g. A prosecutor should not present evidence to the grand jury that the prosecutor

knows to be false;

h. A prosecutor should not knowingly make a false statement of fact or law to the

grand jury.

b. Would clearly provide information that is irrelevant to the investigation;

c. Would be inconsistent with the need to preserve the secrecy of the

investigation;

d. Is made for an improper purpose.

Before a request to testify is granted, the target should be required to waive on the record

his or her Fifth Amendment privilege against self incrimination.

3-3.7 Grand Jury Subpoenas

While a prosecutor should zealously pursue all relevant information that is within the

scope of a criminal investigation, reasonable efforts should be made to minimize the

impose an undue burden on the recipients.

3-3.8 Termination of Target Status

If a person has previously been notified or made aware that he or she was the target of a

grand jury investigation and the prosecutor elects not to seek an indictment or the grand

jury fails to return a true bill and no further investigation against the target is

contemplated, the prosecutor should notify the person he or she is no longer a target,

unless doing so is inconsistent with the effective enforcement of the criminal law.

Commentary

As a result, the standards addressing the grand jury investigation are intended to

encourage prosecutors to conduct the grand jury investigations with a sense of fairness. In

order for the criminal justice system to remain viable, a large majority of the people must

believe in its fairness and effectiveness. Provisions such as allowing a witness to consult

with counsel, notification of target status, warning regarding the use of testimony, and

allowing a target to testify allow the prosecutor to describe and defend the system by

arguing that those provisions show it to be an effective tool in the pursuit of justice.

4. Grants of Immunity

d. The likelihood that the defendant will cooperate with and benefit from the

diversion program;

e. Whether an available program is appropriate to the needs of the offender;

f. The impact of diversion and the crime on the community;

g. Recommendations of the relevant law enforcement agency;

h. The likelihood that the defendant will recidivate;

i. The extent to which diversion will enable the defendant to maintain

employment or remain in school;

j. The opinion of the victim;

k. Provisions for restitution;

4-3.6 Diversion Procedures

The process of diverting a defendant should include the following procedures:

a. A signed agreement or court record specifying all requirements for the accused;

b. A signed waiver of speedy trial requirements, where applicable;

c. The right of the prosecutor, for a designated time period, to proceed with the

criminal case when, in the prosecutor’s judgment, such action would be in the

interest of justice;

d. Appropriate mechanisms to safeguard the prosecution of the case, such as

4-3.8 Explanation of Diversion Decision

Upon request, the prosecutor should provide adequate explanations of diversion decisions

to victims, witnesses, law enforcement officials, the court, and statewide diversionary

program(s) and, when deemed appropriate, to other interested parties.

Commentary

An alternative available to prosecutors in the processing of a criminal complaint is that of

diversion - the channeling of criminal defendants and even potential defendants, into

available in continued criminal prosecution.

Determination of the appropriateness of diversion in a specified case will involve a

subjective determination that, after consideration of all circumstances, the offender and

the community will both benefit more by diversion than by prosecution.

The chief prosecutor should promulgate guidelines outlining the approach and criteria

under which he wishes diversion determinations to be made. These guidelines will aid in

providing a policy that is both uniform and in accordance with the intentions of the

prosecutor.

Equally important as protecting the rights of the individual is the necessity to protect the

because an alternative procedure is thought to be more appropriate and more beneficial.

4. Pretrial Release

4-4.1 Prosecutorial Responsibility

A prosecutor should request that bail be set at an appropriate amount to ensure that the

defendant appears at all required court proceedings, and, where allowed by law, does not

pose a danger to others or to the community. Where permitted by law, a prosecutor

should request that the defendant be held without bail if the prosecutor reasonably

believes the accused:

4-4.2 Bail Amount Request

A prosecutor should take steps to gather adequate information about the defendant’s

circumstances and history to request an appropriate bail amount. Among the factors a

prosecutor may consider in determining the proper amount to request are:

a. The defendant’s employment status and history;

b. The defendant’s financial condition, ability to raise funds and source of funds;

c. The defendant’s length and character of residence in the community, and the

nature and extent of the accused’s family ties to the community;

d. The nature and severity of the crime, the strength of the evidence, and the

to tamper with the evidence;

g. Identification of responsible members of the community who would vouch for

the accused’s reliability;

h. Any other factors indicating the defendant’s ties to the community.

A prosecutor should not seek a bail amount or other release conditions that are greater

than necessary to ensure the safety of others and the community and to ensure the

appearance of the defendant at trial.

4-4.3 Continuing Obligation

If, after the initial bail determination is made, the prosecutor learns of new information

4-4.4 Alternatives to Pretrial Incarceration

Prosecutors should recommend bail decisions that facilitate pretrial release rather than

detention to the extent such release is consistent with the prosecutor’s responsibilities set

forth in Section 4-4.1.

4-4.5 Periodic Reports

A prosecutor should request periodic reports on detained defendants to determine if

continued detention under the current conditions is appropriate. The prosecutor’s office

should be informed of any violations of pretrial release conditions of a defendant released

to some extent by the laws and procedures in his or her jurisdiction. The procedures may

range from the use of a summons to arrest and a request to hold the defendant without

bail under appropriate conditions.

These provisions recognize a respect for the presumption of innocence, and therefore

state a clear preference for release of defendants pending trial. However, because a

prosecutor must represent the public interest, the standards also recognize that in some

circumstances in which the defendant is a significant flight risk, or where there is a threat

to harm or intimidate witnesses or victims or to destroy or manipulate evidence, setting

no bail or setting bail in an amount where the defendant will not be able to meet the

lessen the requirements or to seek sanctions or incarceration, should be sought.

5. First Appearance

4-5.1 Prosecutorial Responsibility

The prosecutor should work with law enforcement and the courts to see that the accused

is brought before a judicial officer without unnecessary delay.

4-5.2 Prosecutor’s Role

A prosecutor need not be present at the first appearance unless required by statute, rule,

or court order. When the prosecutor is present at the first appearance, he or she should, to

the extent practicable, ensure that:

c. Any schedule of future proceedings that the court sets avoids unnecessary

delay.

If the accused is not represented by counsel at the first appearance, a prosecutor should

not seek a waiver from the accused of a preliminary hearing or other pretrial right.

Commentary

Although prosecutors usually do not control when a first appearance occurs, they should

work very closely with law enforcement and the courts to establish standard procedures

to assure the filing of accurate charges without unnecessary delay, but with sufficient

information as is required for a judicial officer to make the probable cause determination.

4-6.2 Waiver

Before accepting a waiver by the defendant of a probable cause determination, the

prosecutor should be satisfied that the defendant’s decision was knowing and voluntary.

A defendant’s opportunity to consult with counsel prior to the waiver is prima facie

evidence of a valid waiver.

Commentary

7. Forfeiture

4-7.1 Prosecutor’s Role

The prosecutor should support the enactment and enforcement of statutes that permit the

forfeiture of property used in or obtained as a result of criminal activity.

4-7.2 Impact on Private Counsel

The ability of defendants to secure private legal counsel of their choice should not be a

consideration in the prosecutor’s enforcement of forfeiture statutes.

remit, mitigate, or forgo the forfeiture of property to an owner or interest holder other

than the wrongdoer. Factors a prosecutor may consider in making such a decision include

whether an owner or interest holder has, to the prosecutor’s satisfaction, established that:

a. The interest was acquired and maintained in good faith without knowledge or

substantial reason to know of the conduct that gave rise to the forfeiture;

b. That the forfeiture would work a severe hardship on an otherwise innocent

owner or interest holder; and

c. That the property will not be used in furtherance of future criminal activity or

benefit the one whose conduct subjected the property to forfeiture.

Commentary

The concept that a person should not be allowed to profit from his or her wrongdoing is

the underlying principle of forfeiture. In addition to the restitutional aspect, the possibility

of deterrence to others is also important.

Frequently, ownership interests in property are mixed and forfeiture would have adverse

results for others. The prosecutor, in his discretion, may determine when extenuating

circumstances exist such that foregoing, remitting, or mitigating forfeiture is appropriate.

These standards provide guidance in exercising that discretion.

8. The Grand Jury Charging Function

4-8.1 Prosecutorial Responsibility

To the extent permitted by the jurisdiction’s law or rules, a prosecutor appearing before a

grand jury:

a. May explain the law and express his or her opinion on the legal significance of

the evidence;

b. Should assist the grand jury with procedural and administrative matters

appropriate to its work;

c. May recommend that specific charges be returned;

he or she should encourage members of the grand jury to consider the fact that

sufficient evidence must exist to enable the prosecutor to meet the state’s burden

of proof at trial;

e. Should take all necessary steps to preserve the secrecy of the grand jury

proceedings.

4-8.2 Evidence Before the Grand Jury

Unless otherwise required by the law or applicable rules of ethical conduct of the

jurisdiction, the following should apply to evidence presented to the grand jury:

a. A prosecutor should present to the grand jury any credible evidence or

a witness that the prosecutor knows or believes is covered by a valid claim of

attorney-client privilege;

d. A prosecutor should not take any action that could improperly influence the

testimony of a grand jury witness;

e. If the prosecutor is convinced in advance of a grand jury appearance that any

witness will invoke his or her Fifth Amendment privilege against self

incrimination rather than provide any relevant information, the prosecutor should

not present the witness to the grand jury unless the prosecutor plans to challenge

the assertion of the privilege or to seek a grant of immunity. The grand jury may

be informed of the reason the witness will not appear;

4-8.3 Impermissible Conduct

A prosecutor should take no action and should make no statements that have the potential

to improperly undermine the grand jury’s independence.

4-8.4 Hearsay Evidence

The prosecutor may present reliable hearsay evidence to a grand jury in accordance with

applicable law or court rule. However, when hearsay evidence is presented, the grand

jury should be informed that it is hearsay evidence.

4-8.5 Statements of Record

except as otherwise provided by law.

Commentary

The standard outlines what action a prosecutor may be permitted without compromising

the independence of the grand jury. Given the need to respect the independence of the

grand jury, these standards impose a duty upon the prosecutor to conduct himself or

herself with the same candor as is required before a court.

9. Discovery

discovery of material information, and fully and promptly comply with lawful discovery

requests from defense counsel.

4-9.2 Continuing Duty

If at any point in the pretrial or trial proceedings the prosecutor discovers additional

witnesses, information, or other material previously requested or ordered which is subject

to disclosure or inspection, the prosecutor should promptly notify defense counsel and

provide the required information.

4-9.3 Access to Evidence Not to Be Impeded

4-9.5 Redacting Evidence

When portions of certain materials are discoverable and other portions are not, a

prosecutor should make good faith efforts to redact the non-discoverable portions in a

way that does not cause confusion or prejudice the accused.

4-9.6 Reciprocal Discovery

A prosecutor should take steps to ensure that the defense complies with any obligation to

provide discovery to the prosecution.

Commentary

differences in interpretation of the legal requirements by various state and federal

prosecutors. Therefore these standards set out to discuss fairness and responsibility

without direct reference to specific interpretations of the laws or rules of the various

jurisdictions.

While it is well established that any doubt about whether something is subject to

disclosure should be resolved in favor of the defendant, and that disclosure of material

exculpatory and impeachment evidence is required, further disclosures may be required

by statute, case law, and rules of ethical conduct in some jurisdictions.

enforcement officer or agency, is the arbiter of what information is disclosed to the

defense. The law enforcement community should be encouraged to provide all

information in its possession to the prosecutor so that he or she can make a disclosure

decision.

Second, the prosecutor’s relationship with defense counsel or his or her opinion regarding

the defendant is not a factor in the discovery process.

Third, while work product of a prosecutor is typically exempt from disclosure, care must

be taken in assigning the “work product” label.

10. Case Scheduling and Priority

4-10.1 Prosecutorial Responsibility

A prosecutor should not seek or cause delays because of a lack of diligent preparation,

nor should the prosecutor seek or cause delays for the purpose of disadvantaging the

defendant or his or her counsel.

4-10.2 Factors to Consider in Setting Priorities

In setting case priority, the prosecutor should consider the following factors:

a. Criminal cases should normally be given priority over civil cases;

d. Whether the victim is a child or family member of the defendant;

e. Whether the defendant is a repeat offender;

f. Whether the defendant is charged with a heinous crime;

g. Whether the defendant is a public official;

h. The age of the case;

i. The availability of witnesses or other evidence;

j. Any significant problems or interests of particular concern to the community;

k. The need for and availability of scientific testing of evidence;

l. The age, health and circumstances of victims and witnesses.

c. Whether the defendant constitutes a significant threat of violence to others;

d. Whether the victim is a child or a family member of the defendant;

e. The need for and availability of scientific testing of evidence;

f. The age, health and circumstances of the victims and witnesses;

g. Whether the defendant is a repeat offender;

h. The seriousness of the crime(s);

i. Whether the defendant is a public official;

j. The age of the case;

k. The availability of witnesses; and

l. The existence of any other significant factor that requires or justifies a delay at

disposition of violation of criminal laws create uncertainty regarding the reliability and

efficiency of the criminal justice system. Victims and families of victims are left without

a necessary ingredient for closure. Defendants are kept in a state of limbo about their

future. In short, delay does not serve anyone’s best interests.

With that being said, the reality is that due to case loads and the necessity for complete

investigations by both the prosecution and defense, case disposition often takes longer

than those involved would like. These standards set forth guidelines for keeping delay as

short as reasonably possible.

11. Juvenile Justice

would constitute a crime if he or she were an adult. The primary duty of the prosecutor is

to seek justice while fully and faithfully representing the interests of the state. While the

safety and welfare of the community, including the victim, is their primary concern,

prosecutors should consider the special interests and needs of the juvenile to the extent

they can do so without unduly compromising their primary concern. Formal charging

documents for all cases referred to juvenile or adult court should be prepared or reviewed

by a prosecutor.

4-11.2 Personnel and Resources

The prosecutor’s office should devote specific personnel and resources to fulfill its

juvenile delinquency cases. Chief prosecutors should select prosecutors for juvenile court

on the basis of their skill and competence, including knowledge of juvenile law, interest

in children and youth, education, and experience. Entry-level attorneys in the juvenile

unit should be as qualified as any entry-level attorney, and receive special training

regarding juvenile matters.

4-11.4 Screening Juvenile Cases

The prosecutor or a designee should review all cases for which some action is required to

decide whether a case will be transferred to adult court, filed as a formal petition with the

juvenile court, or diverted. If the facts are not legally sufficient to warrant the current

alleged offense or the record of previous delinquent behavior reasonably indicates that

the treatment services and dispositional alternatives available in the juvenile court are:

1. The existence and extent of physical injury and emotional trauma suffered

2. Economic loss suffered by the victim;

3. Any undue hardship to the victim caused by testifying.

5-3.2 Innocent Defendants

The prosecutor should always be vigilant for the case where the accused may be innocent

of the offense charged. The prosecutor must satisfy himself or herself that there is a

sound factual basis for all crimes to which the defendant will plead guilty under any

proposed plea agreement.

The prosecutor should not knowingly make any false or misleading statements of law or

fact to the defense during plea negotiations.

4. Fulfillment of Plea Agreements

5-4.1 Limits of Authority

The prosecutor should not make any guarantee concerning the sentence that will be

imposed by the court or concerning a suspension of sentence. The prosecutor may advise

the defense of the position the prosecutor will take concerning disposition of the case,

including a sentence that the prosecutor is prepared to recommend to the court based

avoid implying a greater power to influence the disposition of a case than the prosecutor

actually possesses.

5-4.3 Inability to Fulfill Agreement

The prosecutor should not fail to comply with a plea agreement that has been accepted

and acted upon by the defendant to his or her detriment, unless the defendant fails to

comply with any of his or her obligations under the same agreement or unless the

prosecutor is authorized to do so by law. If the prosecutor is unable to fulfill an

understanding previously agreed upon in plea negotiations, the prosecutor should give

prompt notice to the defendant and cooperate in securing leave of court for the defendant

legal right of any victim or other person authorized by law to address the court at the time

of plea or sentencing. The prosecutor should honor the legal rights of victims and other

persons authorized by law to address the court.

5-4.5 Notification of Media

Prior to the entry of a plea of guilty by the defendant in open court, the prosecutor should

not make any extrajudicial comments to the media about either the possibility or

existence of a plea agreement with the defendant, or of the nature or contents of any such

agreement.

5. Record of Plea Agreement

Whenever the disposition of a charged criminal case is the result of a plea agreement, the

prosecutor should make the existence and terms of the agreement part of the record. The

prosecutor should also maintain the reasons for the disposition in the case file.

5-5.2 Reasons for Nolle Prosequi

Whenever felony criminal charges are dismissed by way of a nolle prosequi or its

equivalent, the prosecutor should make a record of the reasons for his or her action.

Commentary

both the prosecutor and the defendant. Also, like most other agreements, plea

negotiations should be conducted in an honest and forthright manner in which the

prosecution is guided by representing the best interest of society while being mindful of

duties of candor and to avoid overreaching in dealing with the defendant. The prosecutor

should be careful not to agree to an action that he or she cannot perform. Likewise, the

defendant should be aware that his or her failure to perform his or her part of the

agreement might well result in the prosecutor’s withdrawal from the agreement.

In the event that the prosecutor is for some reason unable to fulfill a portion of the

agreement, he or she should do everything possible to help restore the defendant and the

defendant would be interested in a negotiated guilty plea in order to avoid exposure to a

greater sentence. A prosecutor who considers all of the factors in these standards is in the

best position to avoid such a miscarriage of justice.

1. Candor with the Court

2. Selection of Jurors

3. Relations with Jury

4. Opening Statements

6-1.1 False Statement

A prosecutor shall not knowingly make a false statement of fact or law to a court. If a

prosecutor learns that a previous statement of material fact or law made to the court by

the prosecutor is incorrect, the prosecutor shall correct such misstatement in a timely

manner.

6-1.2 Legal Authority

A prosecutor shall inform the court of legal authority in the controlling jurisdiction

known to the prosecutor to be directly adverse to his or her position.

6-1.4 Ex Parte Proceeding

A prosecutor, in an ex parte proceeding authorized by law, shall inform the court of all

material facts known to the prosecutor which he or she reasonably believes are necessary

to an informed decision by the court.

Commentary

In order to make just, informed decisions, the court must have the most accurate

information available regarding the facts and the law. A prosecutor, in his or her role as a

6-2.1 Investigation

A prosecutor may conduct a pre-voir dire investigation of any prospective juror, but any

such investigation shall not harass or intimidate prospective jurors. Prosecutors may

conduct criminal history record checks of prospective jurors and, to the extent required

by law or court order, share any conviction information with the court or defense for use

in conducting the voir dire examination.

6-2.2 Voir dire Examination

process to present information that he or she knows will not be admissible at trial.

6-2.3 Peremptory Challenges

A prosecutor should not exercise a peremptory challenge in an unconstitutional manner

based on group membership or in a manner that is otherwise prohibited by law.

6-2.4 Duration

A prosecutor should conduct selection of the jury without unnecessary delay.

6-2.5 Identity of Jurors

The primary purpose of the jury selection process is to empanel a jury that is

representative of the community and does not have personal interests or prejudices for or

against a party to the extent that they cannot render a verdict based upon the law and the

facts. The standards set forth principles to be followed by prosecutors in conducting their

part of the selection process.

In the permitted voir dire examination, consideration might be given to the court

approved use of a questionnaire to gather basic information and serve as a time saving

device.

threats of violence. It recognizes the need to protect such jurors and adopts a probable

cause test for cases in which the prosecution may request the court to keep their identity

from the defendant and the public.

3. Relations with Jury

6-3.1 Direct Communication

A prosecutor should not intentionally speak to or communicate with any juror or

prospective juror prior to or during the trial of a case, except while in the courtroom with

all parties and the judge present and on the record.

communicate with the jury as a whole or with any members of the jury to discuss the

verdict and the evidence. In jurisdictions where permitted, the prosecutor may ask the

court to inform jurors that it is not improper to discuss the case with the lawyers in the

case after verdict, if the juror decides to do so. The prosecutor should not criticize the

verdict, harass any juror, or intentionally seek to influence future jury service during such

communication. A prosecutor should cease communication upon a juror’s request.

Commentary

The prosecutor has a large responsibility in seeing that the criminal justice system is

4. Opening Statements

6-4.1 Purpose

When permitted by law, a prosecutor may give an opening statement for the purpose of

explaining the legal and factual issues, the evidence, and the procedures of the particular

trial.

6-4.2 Limits

A prosecutor should not allude to evidence unless he or she believes, in good faith, that

such evidence will be available and admitted into evidence at the trial.

to be proved, such assertions should be founded upon the prosecutor’s good faith and

reasonable basis for believing that such evidence will be tendered and admitted into

evidence. The prosecutor should be zealous in maintaining the propriety and fairness

which should characterize his or her conduct as an officer of the court whose duty it is to

competently represent the citizenry of the state in seeking justice. So long as the

prosecutor’s remarks are guided by good faith and a reasonable belief that such assertions

will ultimately be supported by the admissible evidence, the prosecution will have

fulfilled the basic requirements of an opening statement.

6-5.1 Admissibility

evidence.

6-5.2 Questionable Admissibility

A prosecutor, when anticipating the use of testimony or exhibits of questionable

admissibility, should endeavor to obtain a ruling on the admissibility of the testimony or

exhibit prior to mentioning or displaying the same before the jury.

Commentary

Consistent with the concepts of fairness that should be embraced by the prosecutor, he or

A prosecutor should conduct the examination of all witnesses fairly and with due regard

for their reasonable privacy.

6-6.2 Improper Questioning

A prosecutor should not ask a question that implies the existence of a factual predicate

that the prosecutor either knows to be untrue or has no reasonable objective basis for

believing is true.

6-6.3 Purpose of Cross-Examination

A prosecutor should use cross-examination as a good faith quest for the ascertainment of

Commentary

If the criminal justice system is to retain credibility with the public, it must furnish a

tribunal into which people can come to give information without the fear of being

harassed or having their privacy unduly invaded. Our system requires that all witnesses,

those brought in by both the prosecution and defense, be treated fairly. To ask a question

that implies the existence of a factual predicate that is not true or for which the prosecutor

has no reasonable objective basis for believing, is not fair and therefore not proper.

Without such limitations, the overzealous prosecutor could use the examination of a

witness to imply the existence of whatever evidence might be needed in the hope that the

Because cross-examination is to be used as a good faith quest for the truth, a prosecutor

who knows the witness is testifying truthfully should not attempt to ridicule, discredit, or

undermine said witness. That does not mean that the prosecutor cannot cross-examine.

The use of proactive techniques can elicit other information that is useful in establishing

the prosecution’s theory of the case.

In the end, if a prosecutor keeps in mind that his or her responsibility is to seek justice for

all of the people of the community, then following the directives of these standards is

simply a matter of common sense.

should usually be made outside the hearing of the jury.

6-7.2 Motions in Limine

A prosecutor should attempt to resolve issues relating to the admissibility of evidence

prior to the swearing of the jury or, in non-jury adjudications, prior to the swearing of the

first witness. Where permitted, this may be accomplished by the filing of and a hearing

on a Motion in Limine. A prosecutor should also request the court to similarly resolve

questions as to the admissibility of any defense evidence.

Commentary

When the prosecutor has a good faith belief that the evidence, exhibit, demonstration, or

argument being offered is not admissible, he or she should object and give a short

statement of the basis for the objection. Since most, if not all, objections involve

questions of law to be ruled upon by the trial court, the legal arguments are of little or no

concern to the jury. Such argument may also refer to factual matters that have not, up to

that point in the proceedings, been brought out by sworn testimony and which,

additionally, may not be brought out and/or may be inadmissible. This should not,

however, preclude the trial court from giving the jury an explanation of the basis for the

objection and/or its ruling sufficient to dispel the questions that could normally arise in

the minds of the jurors, so that no unfavorable inferences will be drawn by them

reflecting upon a party.

resolved prior to trial. In addition to the savings of court time, the pre-trial rulings will

also allow for more efficient pre-trial preparation and, where permitted, the appeal of

adverse rulings.

8. Arguments to the Jury

6-8.1 Characterizations

In closing argument, a prosecutor should be fair and accurate in the discussion of the law,

the facts, and the reasonable inferences that may be drawn from the facts.

Commentary

Faced with closing argument, the final opportunity to espouse the people’s theory of the

case, prosecutors need to be keenly aware of the limitations on the methods available to

them for that use. Closing arguments have been the ticket back to the trial court from

many appellate courts that have uttered the words “prosecutorial misconduct” in relation

to words uttered by the prosecutor.

These standards set forth the basic rules for guidance in constructing and delivering a

closing argument. Prosecutors should become intimately familiar with his or her

Part VII: Sentencing

2. Probation

3. Community Based Programs

4. Parole/Early Release

1. Sentencing

7-1.1 Fair Sentencing

whether it is the jury or the court, and may offer a sentencing recommendation where

appropriate. The prosecution should also take steps to see that the victim is not denied his

or her rights to address the sentencing body.

7-1.3 Mitigating Evidence

The prosecutor should disclose to the defense prior to sentencing any known evidence

that would mitigate the sentence to be imposed. This obligation to disclose does not carry

with it additional obligations to investigate for mitigating evidence beyond what is

otherwise required by law.

b. Upon noticing any material information within a pre-sentence report which

conflicts with information known to the prosecutor, it is the duty of the prosecutor

to notify the appropriate parties of such conflicting information.

Commentary

Participation in the sentencing process provides the prosecutor the opportunity to

continue his or her quest for justice. The prosecutor should be the person most familiar

with the defendant, the facts surrounding the commission of the crime, and the

procedures that brought the defendant to the sentencing stage. It is also the prosecutor

Sentencing participation also provides the prosecutor with an opportunity to assure that

the victims of crimes are allowed to voice their thoughts and opinions regarding the

sentence to be imposed. Sentencing further provides the means for the prosecutor to make

sure the defendant is treated fairly by making mitigating evidence in his or her possession

available to the defense and to ensure that the information provided to the court in the

form of a pre-sentence investigation report is accurate.

2. Probation

7-2.1 Role in Pre-Sentence Report

a. The office of the prosecutor should be available as a source of information to

the probation department concerning a defendant’s background when developing

pre-sentence reports;

b. The office of the prosecutor should review pre-sentence reports prior to or upon

submission of such reports to the court; and

c. Upon noticing any material information within a pre-sentence report which

conflicts with information known to the prosecutor, it is the duty of the prosecutor

to notify the appropriate parties of such conflicting information.

7-2.2 Prosecutor as a Resource

proceedings within the jurisdiction.

3. Community-Based Programs

7-3.1 Knowledge of Programs

The prosecutor should be cognizant of and familiar with all community-based programs

to which defendants may be sentenced or referred to as a condition of probation.

7-3.2 Prosecutor as a Resource

To the extent permitted by law, the prosecutor should be available as a source of

the probation department or another community based program, the prosecutor, as a

guardian of the public interest in seeing that the court’s directives to the defendant are