1990 Illinois Rules of Professional Conduct
RULE 3.8 Special Responsibilities of a
Prosecutor [revisions to 1990 Rule are
indicated as follows: text deleted from the 1990 Rule is shown by
strikethrough;
additions to the 1990 Rule are shown in red]
(a) The duty of a public prosecutor
or other government lawyer is to seek justice, not merely to
convict.
(b) (a)
A public prosecutor or other government lawyer shall not institute or
cause to be instituted criminal charges when such prosecutor or lawyer knows or
reasonably should know that the
refrain from prosecuting a charges
are
that the prosecutor knows is not supported
by probable cause.
(c) A public prosecutor or other government lawyer
in criminal litigation shall make timely disclosure to counsel for the defendant
or to the defendant if the defendant is not represented by a lawyer, of the
existence of evidence, known to the prosecutor or other government lawyer, that
tends to negate the guilt of the accused or mitigate the degree of the offense.
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(d) In addition to his or her obligations under Rule 3.6, a public prosecutor
or other government lawyer in criminal litigation shall exercise reasonable care
to prevent investigators, law enforcement personnel, employees or other persons
assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the public prosecutor or other government lawyer
would be forbidden from making under Rule 3.6.
(e) The prosecutor in a criminal case shall refrain from
making extrajudicial comments that would pose a serious and imminent threat of
heightening public condemnation of the accused, except for statements that are
necessary to inform the public of the nature and extent of the prosecutor's
action and that serve a legitimate law enforcement purpose.
Adopted February 8, 1990; amended, effective October 30, 1992, effective immediately; amended October 22, 1999, effective December 1, 1999; stayed November 23, 1999, stay lifted March 16, 2000, effective immediately; amended March 1, 2001, effective immediately.
Committee Comments
March 1, 2001
Paragraph (a) of Rule 3.8 is substantially similar to
Standard 3-1.2(c) of the American Bar Association (ABA) Standards for Criminal
Justice (3d ed. 1993); however, paragraph (a) of Rule 3.8 restates a principle
that is far older than the ABA standard. In 1924, the Illinois Supreme Court
reversed a conviction for murder, noting that:
"The
State's attorney in his official capacity is the representative of all people,
including the defendant, and it was as much his duty to safeguard the
constitutional rights of the defendant as those of any other citizen."
People v. Cochran, 313 Ill. 508, 526 (1924).
In 1935, the United States Supreme Court described the duty
of a federal prosecutor in the following passage:
"The
United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very definite sense the servant of
the law, the twofold aim of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor-indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just
one." Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314, 1321, 55
S.Ct. 629, 633 (1935).
Paragraph (a) of Rule 3.8 does
not set an exact standard, but one good prosecutors will readily recognize and
have always adhered to in the discharge of their duties. Specific standards,
such as those in Rules 3.3, 3.4, 3.5, 3.6, the remaining paragraphs of Rule 3.8,
and other applicable rules provide guidance for specific situations. Paragraph
(a) of Rule 3.8 is intended to remind prosecutors that the touchstone of ethical
conduct is the duty to act fairly, honestly, and honorably.