Unethical beyond a reasonable doubt?

Rule 3.8 of the Connecticut Rules of Professional Conduct (and the ABA Model Rules) provides, in relevant part:

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(1) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

This Model Rule has been adopted by almost every state other than NY and CA. The United States Supreme Court has made it clear that:

In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.

Bordenkircher v. Hayes. The Connecticut Supreme Court echoed much of the same in Massameno v. Statewide Grievance Committee:

Prosecutors have enormous discretion in deciding which citizens should be prosecuted and for what charges they are to be held accountable.

So it is undisputed that in order for a prosecutor to behave unethically, he would have to persist in a prosecution despite “knowing” that there is no probable cause. Is the corollary then true? That as long as a prosecutor knows that there is that bare minimum probable cause, persisting in an otherwise sure-to-be-doomed prosecution is ethical?

We all know that probable cause is a fictional, low-as-you-want-it standard that is barely a whisper above reasonable suspicion, which itself is another phrase for “hunch”.

What if a prosecutor “knows” that there is probable cause to support the charge, but also “knows” or “believes” that the evidence he presented will barely meet a “preponderance of the evidence” standard? Can he still persist with the prosecution? In other words, can there be probable cause to believe the defendant committed the crime, but also certainty that he will be found not guilty beyond a reasonable doubt? It is the clash of two legal fictions, I know, but the question is still worth asking.

Take, for example, the following scenario: the prosecutor relies on an eyewitness as the only evidence in the case. The eyewitness says that she saw the defendant commit the crime. The defense interviews the Pope, the Chief Justice of the United States and the President of the United States who will all testify that the eyewitness was with them the instant the crime was committed and they were all on a diplomatic trip at the Cape of Good Hope. The prosecutor also interviews the three, but then decides to pursue the prosecution anyway, because he’ll “leave it up to the jury to sort out credibility”.

Would any prosecutor reasonably believe that he’ll get a jury to disregard the testimony of the Pope, the CJ and the POTUS? I doubt it. But under the plain language of the rule, it wouldn’t be unethical for him to persist in the prosecution.

A look at the commentary to the rule may or may not cloud the issue, depending on your viewpoint:

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions.

To me, it is that phrase that introduces a bit of doubt into the plain language of the Rule. What does it mean by “guilt is decided” and “sufficient evidence”? Can one take the view that guilt is “decided” only after a trial and plea agreements are an “acceptance” of guilt? If that is the case, then doesn’t “sufficient evidence” have to mean evidence sufficient to convince a judge or jury beyond a reasonable doubt? CT Supreme Court’s gloss in Massameno also makes this an interesting question. The Court wrote:

The functions of a state’s attorney are not purely those of an executive officer. As a representative of the people of the state, he is under a duty not solely to obtain convictions but, more importantly, (1) to determine that there is reasonable ground to proceed with a criminal charge; State v. Hayes, 127 Conn. 543, 581, 18 A.2d 895 [(1941), superseded by statute on other grounds as stated in State v. Burns, 194 Conn. 469, 473, 481 A.2d 1077 (1984)]; (2) to see that impartial justice is done the guilty as well as the innocent; and (3) to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty. State v. Harris, 147 Conn. 589, 598, 164 A.2d 399 (1960); State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613 (1941).

If a prosecutor’s duties and obligations extend to the impartial administration of justice (yeah, I know), then in what light must one view the prosecutor who does not believe that he has sufficient evidence to convince a jury that the defendant is guilty of a crime, but persists nonetheless. Are we to put up our hands and say, “well, technically, there is no obligation under the rules” and we can all roll our eyes at the prosecutor behind her back and bad-mouth her. Or is there more?

What if a prosecutor were to write a letter to a defense lawyer and in that letter say “I firmly believe that I do not have sufficient evidence to convince a judge or jury of your client’s guilt beyond a reasonable doubt, but since I believe there is probable cause that your client committed the crime, I am under no ethical obligation to dismiss the charges and hence I will see you in court”? Is that merely sleazy on the prosecutor’s part or does it begin to approach an ethical violation?

The plain language of the rule suggests the former; my antiquated notions of justice suggest the latter.

[Note: This is not a discussion of whether a prosecutor could or should dismiss the charges, but rather whether it is unethical for a prosecutor not to do so. I'm sure there are many prosecutors - some of whom I know personally - who would drop charges that they could not prove beyond a reasonable doubt, despite the presence of probable cause. The question is, are they doing anything wrong by persisting? The answer, it seems to me, is no.]