Rules of Professional Conduct

Chapter 8. Maintaining the Integrity of the Profession (Rules 8.1 – 8.5)

Misconduct by Judges & Prosecutor

Rule 8.1 False Statement Regarding Application for Admission to Practice Law

• (a) An applicant for admission to practice law shall not, in connection with that person’s* own application for admission, make a statement of material fact that the lawyer knows*
  to be false, or make such a statement with reckless disregard as to its truth or falsity.
• (b) A lawyer shall not, in connection with another person’s* application for admission to practice law, make a statement of material fact that the lawyer knows* to be false.
• (c) An applicant for admission to practice law, or a lawyer in connection with an application for admission, shall not fail to disclose a fact necessary to correct a statement known* by the applicant or the lawyer to have created a material misapprehension in the matter, except that this rule does not authorize disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6.
• (d) As used in this rule, “admission to practice law” includes admission or readmission to membership in the State Bar; reinstatement to active membership in the State Bar; and any similar process relating to admission or certification to practice law in California or elsewhere.

Comment

1.  A person* who makes a false statement in connection with that person’s* own application for admission to practice law may be subject to discipline under this rule after that person* has been admitted. (See, e.g., In re Gossage (2000) 23 Cal.4th 1080 [99 Cal.Rptr.2d 130].)
2.  A lawyer’s duties with respect to a pro hac vice application or other application to a court for admission to practice law are governed by rule 3.3.
3.  A lawyer representing an applicant for admission to practice law is governed by the rules applicable to the lawyer-client relationship, including Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6. A lawyer representing a lawyer who is the subject of a disciplinary proceeding is not governed by this rule but is subject to the requirements of rule 3.3. Rule 8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline A lawyer shall comply with the terms and conditions attached to any agreement in lieu of discipline, any public or private reproval, or to other discipline administered by the State Bar pursuant to Business and Professions Code sections 6077 and 6078 and California Rules of Court, rule 9.19.

Other provisions also require a lawyer to comply with agreements in lieu of discipline and conditions of discipline. (See, e.g., Bus. & Prof. Code, § 6068, subds. (k), (l).)

Rule 8.2 Judicial & Legal Officials

(Rule Approved by the Supreme Court, Effective November 1, 2018)

• (a) A lawyer shall not make a statement of fact that the lawyer knows* to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office.
• (b) A lawyer who is a candidate for judicial office in California shall comply with canon 5 of the California Code of Judicial Ethics. For purposes of this rule, “candidate for judicial office” means a lawyer seeking judicial office by election. The determination of when a lawyer is a candidate for judicial office by election is defined in the terminology section of the California Code of Judicial Ethics. A lawyer’s duty to comply with this rule shall end when the lawyer announces withdrawal of the lawyer’s candidacy or when the results of the election are final, whichever occurs first.
• (c) A lawyer who seeks appointment to judicial office shall comply with canon 5B(1) of the California Code of Judicial Ethics. A lawyer becomes an applicant seeking judicial office by appointment at the time of first submission of an application or personal data questionnaire to the appointing authority. A lawyer’s duty to comply with this rule shall end when the lawyer advises the appointing authority of the withdrawal of the lawyer’s
  application. To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized. Lawyers also are obligated to maintain the respect due to the courts of justice and judicial officers. (See Bus. & Prof. Code, § 6068, subd. (b).)

Rule 8.3 [Reserved]

Model Rule 8.3 – Reporting Professional Misconduct

• a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
• (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
• (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

• (a) violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another;
• (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
• (c) engage in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation;
• (d) engage in conduct that is prejudicial to the administration of justice;
• (e) state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law; or
• (f) knowingly* assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law. For purposes of this rule, “judge” and “judicial officer” have the same meaning as in rule 3.5(c).

1. 1.  A violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.
   2. Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
   3. A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. (See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)
   4. A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.
   5. Paragraph (c) does not apply where a lawyer advises clients or others about, or  supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.
   6. This rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.

Rule 8.4.1 Prohibited Discrimination, Harassment and Retaliation

• (a) In representing a client, or in terminating or refusing to accept the representation of any
  client, a lawyer shall not:
  • (1) unlawfully harass or unlawfully discriminate against persons* on the basis of any
    protected characteristic; or
  • (2) unlawfully retaliate against persons.*
    • (b) In relation to a law firm’s operations, a lawyer shall not:
      • (1) on the basis of any protected characteristic,
        • (i) unlawfully discriminate or knowingly* permit unlawful discrimination;
        • (ii) unlawfully harass or knowingly* permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person* providing services pursuant to a contract; or
        • (iii) unlawfully refuse to hire or employ a person*, or refuse to select a person* for a training program leading to employment, or bar or discharge a person* from employment or from a training program leading to employment, or discriminate against a person* in compensation or in terms, conditions, or privileges of employment; or
      • (2) unlawfully retaliate against persons.*
    • (c) For purposes of this rule:
      • (1) “protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived;
      • (2) “knowingly permit” means to fail to advocate corrective action where the lawyer knows* of a discriminatory policy or practice that results in the unlawful discrimination or harassment prohibited by paragraph (b);
      • (3) “unlawfully” and “unlawful” shall be determined by reference to applicable state and federal statutes and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public; and
      • (4) “retaliate” means to take adverse action against a person* because that person* has
        • (i) opposed, or
        • (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by paragraphs (a)(1) or (b)(1) of this rule.
    • (d) A lawyer who is the subject of a State Bar investigation or State Bar Court proceeding alleging a violation of this rule shall promptly notify the State Bar of any criminal, civil, or administrative action premised, whether in whole or part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding. (e) Upon being issued a notice of a disciplinary charge under this rule, a lawyer shall:
      • (1) if the notice is of a disciplinary charge under paragraph (a) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing and the United States Department of Justice, Coordination and Review Section; or
      • (2) if the notice is of a disciplinary charge under paragraph (b) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing
        and the United States Equal Employment Opportunity Commission.
    • (f) This rule shall not preclude a lawyer from:
      • (1) representing a client alleged to have engaged in unlawful discrimination, harassment, or retaliation;
      • (2) declining or withdrawing from a representation as required or permitted by rule 1.16; or
        (3) providing advice and engaging in advocacy as otherwise required or permitted by these rules and the State Bar Act.
        • [1] Conduct that violates this rule undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal. A lawyer may not engage in such conduct through the acts of another. (See rule 8.4(a).) In relation to a law firm’s operations, this rule imposes on all law firm* lawyers the responsibility to advocate corrective action to address known* harassing or discriminatory conduct by the firm* or any of its other lawyers or nonlawyer personnel. Law firm* management and supervisorial lawyers retain their separate responsibility under rules 5.1 and 5.3. Neither this rule nor rule 5.1 or 5.3 imposes on the alleged victim of any conduct prohibited by this rule any responsibility to advocate corrective action.
        • [2] The conduct prohibited by paragraph (a) includes the conduct of a lawyer in a proceeding before a judicial officer. (See Cal. Code Jud. Ethics, canon 3B(6) [“A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation against parties, witnesses, counsel, or others.”].) A lawyer does not violate paragraph (a) by referring to any particular status or group when the reference is relevant to factual or legal issues or arguments in the representation. While both the parties and the court retain discretion to refer such conduct to the State Bar, a court’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (a).
        • [3] A lawyer does not violate this rule by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations. A lawyer also does not violate this rule by otherwise restricting who will be accepted as clients for advocacy-based reasons, as required or permitted by these rules or other law.
        • [4] This rule does not apply to conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.
        • [5] What constitutes a failure to advocate corrective action under paragraph (c)(2) will depend on the nature and seriousness of the discriminatory policy or practice, the extent to which the lawyer knows* of unlawful discrimination or harassment resulting from that policy or practice, and the nature of the lawyer’s relationship to the lawyer or law firm* implementing that policy or practice. For example, a law firm* non-management and non-supervisorial lawyer who becomes aware that the law firm* is engaging in a discriminatory hiring practice may advocate corrective action by bringing that discriminatory practice to the attention of a law firm* management lawyer who would have responsibility under rule 5.1 or 5.3 to take reasonable* remedial action upon becoming aware of a violation of this rule.
        • [6] Paragraph (d) ensures that the State Bar and the State Bar Court will be provided with information regarding related proceedings that may be relevant in determining whether a State Bar investigation or a State Bar Court proceeding relating to a violation of this rule should be abated.
        • [7] Paragraph (e) recognizes the public policy served by enforcement of laws and regulations prohibiting unlawful discrimination, by ensuring that the state and federal agencies with primary responsibility for coordinating the enforcement of those laws and regulations is provided with notice of any allegation of unlawful discrimination, harassment, or retaliation by a lawyer that the State Bar finds has sufficient merit to warrant issuance of a notice of a disciplinary charge.
        • [8] This rule permits the imposition of discipline for conduct that would not necessarily result in the award of a remedy in a civil or administrative proceeding if such proceeding were filed.
        • [9] A disciplinary investigation or proceeding for conduct coming within this rule may also be initiated and maintained if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard.

Rule 8.5 Disciplinary Authority; Choice of Law

• (a) Disciplinary Authority. A lawyer admitted to practice in California is subject to the disciplinary authority of California, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in California is also subject to the disciplinary authority of California if the lawyer provides or offers to provide any legal services in California. A lawyer may be subject to the disciplinary authority of both California and another jurisdiction for the same conduct.
• (b) Choice of Law. In any exercise of the disciplinary authority of California, the rules of professional conduct to be applied shall be as follows:
  • (1) for conduct in connection with a matter pending before a tribunal,* the rules of the jurisdiction in which the tribunal* sits, unless the rules of the tribunal* provide otherwise; and
  • (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes* the predominant effect of the lawyer’s conduct will occur.Disciplinary Authority
    The conduct of a lawyer admitted to practice in California is subject to the disciplinary authority of California. (See Bus. & Prof. Code, §§ 6077, 6100.) Extension of the disciplinary authority of California to other lawyers who provide or offer to provide legal services in California is for the protection of the residents of California. A lawyer disciplined by a disciplinary authority in another jurisdiction may be subject to discipline in California for the same conduct. (See, e.g., § 6049.1.)

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To Learn More…. Read MORE Below and click the links Below 

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Civil Negligence vs Criminal Negligence

Negligence is when someone acts in a way that puts the public at risk. It’s something a reasonable person in the same situation would not do. The law recognizes the difference between civil and criminal negligence.

Civil negligence is what lawyers try to prove in lawsuits. To meet this standard, lawyers must prove someone went over the boundaries of a duty of care by a preponderance of the evidence. It does not have to be extreme; a moment’s inattention while driving could be considered civil negligence.

Criminal negligence takes it much further. It’s a drastic difference from how a normal person would act in the situation and must be proven beyond a reasonable doubt. This means there is no other explanation for why the dangerous situation happened in the first place beyond negligence.

Prosecution Function

Fourth Edition (2017) of the CRIMINAL JUSTICE STANDARDS for the PROSECUTION FUNCTION

Copyright by the American Bar Association. This work (Criminal Justice Standards) may be used for non-profit educational and training purposes and legal reform (legislative, judicial, and executive) without written permission but with a citation to this source.  Some specific Standards can be purchased in book format.

TABLE OF CONTENTS

[Use the navigation bar on the left side to go to a specific Part or Standard.]

PART I: GENERAL STANDARDS

Standard 3-1.1 The Scope and Function of These Standards

(a) As used in these standards, “prosecutor” means any attorney, regardless of agency, title, or full or part-time assignment, who acts as an attorney to investigate or prosecute criminal cases or who provides legal advice regarding a criminal matter to government lawyers, agents, or offices participating in the investigation or prosecution of criminal cases. These Standards are intended to apply in any context in which a lawyer would reasonably understand that a criminal prosecution could result.

(b) These Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are written and intended to be entirely consistent with the ABA’s Model Rules of Professional Conduct, and are not intended to modify a prosecutor’s obligations under applicable rules, statutes, or the constitution. They are aspirational or describe “best practices,” and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate for a motion to suppress evidence or dismiss a charge. For purposes of consistency, these Standards sometimes include language taken from the Model Rules of Professional Conduct; but the Standards often address conduct or provide details beyond that governed by the Model Rules of Professional Conduct. No inconsistency is ever intended; and in any case a lawyer should always read and comply with the rules of professional conduct and other authorities that are binding in the specific jurisdiction or matter, including choice of law principles that may regulate the lawyer’s ethical conduct.

(c) Because the Standards for Criminal Justice are aspirational, the words “should” or “should not” are used in these Standards, rather than mandatory phrases such as “shall” or “shall not,” to describe the conduct of lawyers that is expected or recommended under these Standards. The Standards are not intended to suggest any lesser standard of conduct than may be required by applicable mandatory rules, statutes, or other binding authorities.

(d) These Standards are intended to address the performance of prosecutors in all stages of their professional work. Other ABA Criminal Justice Standards should also be consulted for more detailed consideration of the performance of prosecutors in specific areas.

Standard 3-1.2 Functions and Duties of the Prosecutor

(a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.

(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

(c) The prosecutor should know and abide by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction. The prosecutor should avoid an appearance of impropriety in performing the prosecution function. A prosecutor should seek out, and the prosecutor’s office should provide, supervisory advice and ethical guidance when the proper course of prosecutorial conduct seems unclear. A prosecutor who disagrees with a governing ethical rule should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order.

(d) The prosecutor should make use of ethical guidance offered by existing organizations, and should seek to establish and make use of an ethics advisory group akin to that described in Defense Function Standard 4-1.11.

(e) The prosecutor should be knowledgeable about, consider, and where appropriate develop or assist in developing alternatives to prosecution or conviction that may be applicable in individual cases or classes of cases. The prosecutor’s office should be available to assist community efforts addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.

(f) The prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, the prosecutor should stimulate and support efforts for remedial action. The prosecutor should provide service to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A prosecutorial office should support such activities, and the office’s budget should include funding and paid release time for such activities.

Standard 3-1.3 The Client of the Prosecutor

The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim.

When investigating or prosecuting a criminal matter, the prosecutor does not represent law enforcement personnel who have worked on the matter and such law enforcement personnel are not the prosecutor’s clients.

The public’s interests and views should be determined by the chief prosecutor and designated assistants in the jurisdiction.

Standard 3-1.4 The Prosecutor’s Heightened Duty of Candor

(a) In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and in fulfilling other professional obligations. However, the prosecutor should be circumspect in publicly commenting on specific cases or aspects of the business of the office.

(b) The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes. In addition, while seeking to accommodate legitimate confidentiality, safety or security concerns, a prosecutor should correct a prosecutor’s representation of material fact or law that the prosecutor reasonably believes is, or later learns was, false, and should disclose a material fact or facts when necessary to avoid assisting a fraudulent or criminal act or to avoid misleading a judge or factfinder.

(c) The prosecutor should disclose to a court legal authority in the controlling jurisdiction known to the prosecutor to be directly adverse to the prosecution’s position and not disclosed by others.

Standard 3-1.5 Preserving the Record 

At every stage of representation, the prosecutor should take steps necessary to make a clear and complete record for potential review. Such steps may include: filing motions including motions for reconsideration, and exhibits; making objections and placing explanations on the record; requesting evidentiary hearings; requesting or objecting to jury instructions; and making offers of proof and proffers of excluded evidence.

Standard 3-1.6 Improper Bias Prohibited 

(a) The prosecutor should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status. A prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. A prosecutor should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority.

(b) A prosecutor’s office should be proactive in efforts to detect, investigate, and eliminate improper biases, with particular attention to historically persistent biases like race, in all of its work. A prosecutor’s office should regularly assess the potential for biased or unfairly disparate impacts of its policies on communities within the prosecutor’s jurisdiction, and eliminate those impacts that cannot be properly justified.    

Standard 3-1.7 Conflicts of Interest

(a) The prosecutor should know and abide by the ethical rules regarding conflicts of interest that apply in the jurisdiction, and be sensitive to facts that may raise conflict issues. When a conflict requiring recusal exists and is non-waivable, or informed consent has not been obtained, the prosecutor should recuse from further participation in the matter. The office should not go forward until a non-conflicted prosecutor, or an adequate waiver, is in place.

(b) The prosecutor should not represent a defendant in criminal proceedings in the prosecutor’s jurisdiction.

(c) The prosecutor should not participate in a matter in which the prosecutor previously participated, personally and substantially, as a non-prosecutor, unless the appropriate government office, and when necessary a former client, gives informed consent confirmed in writing.

(d) The prosecutor should not be involved in the prosecution of a former client. A prosecutor who has formerly represented a client should not use information obtained from that representation to the disadvantage of the former client.

(e) The prosecutor should not negotiate for private employment with an accused or the target of an investigation, in a matter in which the prosecutor is participating personally and substantially, or with an attorney or agent for such accused or target

(f) The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships. A prosecutor should not allow interests in personal advancement or aggrandizement to affect judgments regarding what is in the best interests of justice in any case.

(g) The prosecutor should disclose to appropriate supervisory personnel any facts or interests that could reasonably be viewed as raising a potential conflict of interest. If it is determined that the prosecutor should nevertheless continue to act in the matter, the prosecutor and supervisors should consider whether any disclosure to a court or defense counsel should be made, and make such disclosure if appropriate. Close cases should be resolved in favor of disclosure to the court and the defense.

(h) The prosecutor whose current relationship to another lawyer is parent, child, sibling, spouse or sexual partner should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer. A prosecutor who has a significant personal, political, financial, professional, business, property, or other relationship with another lawyer should not participate in the prosecution of a person who is represented by the other lawyer, unless the relationship is disclosed to the prosecutor’s supervisor and supervisory approval is given, or unless there is no other prosecutor who can be authorized to act in the prosecutor’s stead. In the latter rare case, full disclosure should be made to the defense and to the court.

(i) The prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses in cases being handled by the prosecutor’s office. If requested to make such a recommendation, the prosecutor should consider instead referring the person to the public defender, or to a panel of available criminal defense attorneys such as a bar association lawyer-referral service, or to the court. In the rare case where a specific recommendation is made by the prosecutor, the recommendation should be to an independent and competent attorney, and the prosecutor should not make a referral that embodies, creates or is likely to create a conflict of interest. A prosecutor should not comment negatively upon the reputation or abilities of a defense counsel to an accused person or witness who is seeking counsel in a case being handled by the prosecutor’s office.

(j) The prosecutor should promptly report to a supervisor all but the most obviously frivolous misconduct allegations made, publicly or privately, against the prosecutor. If a supervisor or judge initially determines that an allegation is serious enough to warrant official investigation, reasonable measures, including possible recusal, should be instituted to ensure that the prosecution function is fairly and effectively carried out. A mere allegation of misconduct is not a sufficient basis for prosecutorial recusal, and should not deter a prosecutor from attending to the prosecutor’s duties.

Standard 3-1.8 Appropriate Workload

(a) The prosecutor should not carry a workload that, by reason of its excessive size or complexity, interferes with providing quality representation, endangers the interests of justice in fairness, accuracy, or the timely disposition of charges, or has a significant potential to lead to the breach of professional obligations. A prosecutor whose workload prevents competent representation should not accept additional matters until the workload is reduced, and should work to ensure competent representation in existing matters. A prosecutor within a supervisory structure should notify supervisors when counsel’s workload is approaching or exceeds professionally appropriate levels.

(b) The prosecutor’s office should regularly review the workload of individual prosecutors, as well as the workload of the entire office, and adjust workloads (including intake) when necessary to ensure the effective and ethical conduct of the prosecution function.

(c) The chief prosecutor for a jurisdiction should inform governmental officials of the workload of the prosecutor’s office, and request funding and personnel that are adequate to meet the criminal caseload. The prosecutor should consider seeking such funding from all appropriate sources. If workload exceeds the appropriate professional capacity of a prosecutor or prosecutor’s office, that office or counsel should also alert the court(s) in its jurisdiction and seek judicial relief.

Standard 3-1.9 Diligence, Promptness and Punctuality

(a) The prosecutor should act with diligence and promptness to investigate, litigate, and dispose of criminal charges, consistent with the interests of justice and with due regard for fairness, accuracy, and rights of the defendant, victims, and witnesses. The prosecutor’s office should be organized and supported with adequate staff and facilities to enable it to process and resolve criminal charges with fairness and efficiency.

(b) When providing reasons for seeking delay, the prosecutor should not knowingly misrepresent facts or otherwise mislead. The prosecutor should use procedures that will cause delay only when there is a legitimate basis for such use, and not to secure an unfair tactical advantage.

(c) The prosecutor should not unreasonably oppose requests for continuances from defense counsel.

(d) The prosecutor should know and comply with timing requirements applicable to a criminal investigation and prosecution, so as to not prejudice a criminal matter.

(e) The prosecutor should be punctual in attendance in court, in the submission of motions, briefs, and other papers, and in dealings with opposing counsel, witnesses and others. The prosecutor should emphasize to assistants and prosecution witnesses the importance of punctuality in court attendance.

Standard 3-1.10  Relationship with the Media

(a) For purposes of this Standard, a “public statement” is any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication or media, including social media. An extrajudicial statement is any oral, written, or visual presentation not made either in a courtroom during criminal proceedings or in court filings or correspondence with the court or counsel regarding criminal proceedings.

(b) The prosecutor’s public statements about the judiciary, jurors, other lawyers, or the criminal justice system should be respectful even if expressing disagreement.

(c) The prosecutor should not make, cause to be made, or authorize or condone the making of, a public statement that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused, but the prosecutor may make statements that inform the public of the nature and extent of the prosecutor’s or law enforcement actions and serve a legitimate law enforcement purpose. The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed, but must take care not to imply guilt or otherwise prejudice the interests of victims, witnesses or subjects of an investigation. A prosecutor’s public statements should otherwise be consistent with the ABA Standards on Fair Trial and Public Discourse.

(d) A prosecutor should not place statements or evidence into the court record to circumvent this Standard.

(e) The prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement or providing non-public information that the prosecutor would be prohibited from making or providing under this Standard or other applicable rules or law.

(f) The prosecutor may respond to public statements from any source in order to protect the prosecution’s legitimate official interests, unless there is a substantial likelihood of materially prejudicing a criminal proceeding, in which case the prosecutor should approach defense counsel or a court for relief. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(g) The prosecutor has duties of confidentiality and loyalty, and should not secretly or anonymously provide non-public information to the media, on or off the record, without appropriate authorization.

(h) The prosecutor should not allow prosecutorial judgment to be influenced by a personal interest in potential media contacts or attention.

(i) A prosecutor uninvolved in a matter who is commenting as a media source may offer generalized commentary concerning a specific criminal matter that serves to educate the public about the criminal justice system and does not risk prejudicing a specific criminal proceeding. A prosecutor acting as such a media commentator should make reasonable efforts to be well-informed about the facts of the matter and the governing law. The prosecutor should not offer commentary regarding the specific merits of an ongoing criminal prosecution or investigation, except in a rare case to address a manifest injustice and the prosecutor is reasonably well-informed about the relevant facts and law.

(j) During the pendency of a criminal matter, the prosecutor should not re-enact, or assist law enforcement in re-enacting, law enforcement events for the media. Absent a legitimate law enforcement purpose, the prosecutor should not display the accused for the media, nor should the prosecutor invite media presence during investigative actions without careful consideration of the interests of all involved, including suspects, defendants, and the public. However, a prosecutor may reasonably accommodate media requests for access to public information and events.

Standard 3-1.11 Literary or Media Rights Agreements Prohibited

(a) Before the conclusion of all aspects of a matter in which a prosecutor participates, the prosecutor should not enter into any agreement or informal understanding by which the prosecutor acquires an interest in a literary or media portrayal or account based on or arising out of the prosecutor’s involvement in the matter.

(b) The prosecutor should not allow prosecutorial judgment to be influenced by the possibility of future personal literary or other media rights.

(c) In creating or participating in any literary or other media account of a matter in which the prosecutor was involved, the prosecutor’s duty of confidentiality must be respected even after government service is concluded. When protected confidences are involved, a prosecutor or former prosecutor should not make disclosure without consent from the prosecutor’s office. Such consent should not be unreasonably withheld, and the public’s interest in accurate historical accounts of significant events after a lengthy passage of time should be considered.

Standard 3-1.12   Duty to Report and Respond to Prosecutorial Misconduct

(a) The prosecutor’s office should adopt policies to address allegations of professional misconduct, including violations of law, by prosecutors. At a minimum such policies should require internal reporting of reasonably suspected misconduct to supervisory staff within the office, and authorize supervisory staff to quickly address the allegations. Investigations of allegations of professional misconduct within the prosecutor’s office should be handled in an independent and conflict-free manner.

(b) When a prosecutor reasonably believes that another person associated with the prosecutor’s office intends or is about to engage in misconduct, the prosecutor should attempt to dissuade the person. If such attempt fails or is not possible, and the prosecutor reasonably believes that misconduct is ongoing, will occur, or has occurred, the prosecutor should promptly refer the matter to higher authority in the prosecutor’s office including, if warranted by the seriousness of the matter, to the chief prosecutor.

(c) If, despite the prosecutor’s efforts in accordance with sections (a) and (b) above, the chief prosecutor permits, fails to address, or insists upon an action or omission that is clearly a violation of law, the prosecutor should take further remedial action, including revealing information necessary to address, remedy, or prevent the violation to appropriate judicial, regulatory, or other government officials not in the prosecutor’s office.

Standard 3-1.13 Training Programs

(a) The prosecutor’s office should develop and maintain programs of training and continuing education for both new and experienced prosecutors and staff. The prosecutor’s office, as well as the organized Bar or courts, should require that current and aspiring prosecutors attend a reasonable number of hours of such training and education.

(b) In addition to knowledge of substantive legal doctrine and courtroom procedures, a prosecutor’s core training curriculum should address the overall mission of the criminal justice system. A core training curriculum should also seek to address: investigation, negotiation, and litigation skills; compliance with applicable discovery procedures; knowledge of the development, use, and testing of forensic evidence; available conviction and sentencing alternatives, reentry, effective conditions of probation, and collateral consequences; civility, and a commitment to professionalism; relevant office, court, and defense policies and procedures and their proper application; exercises in the use of prosecutorial discretion; civility and professionalism; appreciation of diversity and elimination of improper bias; and available technology and the ability to use it. Some training programs might usefully be open to, and taught by, persons outside the prosecutor’s office such as defense counsel, court staff, and members of the judiciary.

(c) A prosecution office’s training program should include periodic review of the office’s policies and procedures, which should be amended when necessary. Specialized prosecutors should receive training in their specialized areas. Individuals who will supervise attorneys or staff should receive training in how effectively to supervise.

(d) The prosecutor’s office should also make available opportunities for training and continuing education programs outside the office, including training for non-attorney staff.

(e) Adequate funding for continuing training and education, within and outside the office, should be requested and provided by funding sources.

PART II: ORGANIZATION OF THE PROSECUTION FUNCTION

Standard 3-2.1 Prosecution Authority to be Vested in Full-time, Public-Official Attorneys

(a) The prosecution function should be performed by a lawyer who is

(i) a public official,

(ii) authorized to practice law in the jurisdiction, and

(iii) subject to rules of attorney professional conduct and discipline.

Prosecutors whose professional obligations are devoted full-time and exclusively to the prosecution function are preferable to part-time prosecutors who have other potentially conflicting professional responsibilities.

(b) A prosecutor’s office should have open, effective, and well-publicized methods for communicating with, and receiving communications from, the public in the jurisdiction that it serves.

(c) If a particular matter requires the appointment of a special prosecutor from outside the office, adequate funding for this purpose should be made available. Such special prosecutors should know and are governed by applicable conflict of interest standards for prosecutors. A private attorney who is paid by, or who has an attorney-client relationship with, an individual or entity that is a victim of the charged crime, or who has a personal or financial interest in the prosecution of particular charges, or who has demonstrated any impermissible bias relevant to the particular matter, should not be permitted to serve as prosecutor in that matter.

(d) Unless impractical or unlawful, the prosecutor’s office should implement a system for allowing qualified law students, cross-designated prosecutors from other offices, and private attorneys temporarily assigned to the prosecutor’s office, to learn about and assist with the prosecution function.

Standard 3-2.2 Assuring Excellence and Diversity in the Hiring, Retention, and Compensation of Prosecutors

(a) Strong professional qualifications and performance should be the basis for selection and retention for prosecutor positions. Effective measures to retain excellent prosecutors should be encouraged, while recognizing the benefits of some turnover. Supervisory prosecutors should select and promote personnel based on merit and expertise, without regard to partisan, personal or political factors or influence.

(b) In selecting personnel, the prosecutor’s office should also consider the diverse interests and makeup of the community it serves, and seek to recruit, hire, promote and retain a diverse group of prosecutors and staff that reflect that community.

(c) The function of public prosecution requires highly developed professional skills and a variety of backgrounds, talents and experience. The prosecutor’s office should promote continuing professional development and continuity of service, while providing prosecutors the opportunity to gain experience in all aspects of the prosecution function.

(d) Compensation and benefits for prosecutors and their staffs should be commensurate with the high responsibilities of the office, sufficient to compete with the private sector, and regularly adjusted to attract and retain well-qualified personnel. Compensation for prosecutors should be adequate and also comparable to that of public defense counsel in the jurisdiction.

Standard 3-2.3 Investigative Resources and Experts

    The prosecutor should be provided with funds for qualified experts as needed for particular matters. When warranted by the responsibilities of the office, funds should be available to the prosecutor’s office to employ professional investigators and other necessary support personnel, as well as to secure access to forensic and other experts.

Standard 3-2.4 Office Policies and Procedures

(a) Each prosecutor’s office should seek to develop general policies to guide the exercise of prosecutorial discretion, and standard operating procedures for the office. The objectives of such policies and procedures should be to achieve fair, efficient, and effective enforcement of the criminal law within the prosecutor’s jurisdiction.

(b) In the interest of continuity and clarity, the prosecution office’s policies and procedures should be memorialized and accessible to relevant staff. The office policies and procedures should be regularly reviewed and revised. The office policies and procedures should be augmented by instruction and training, and are not a substitute for regular training programs.

(c) Prosecution office policies and procedures whose disclosure would not adversely affect the prosecution function should be made available to the public.

(d) The prosecutor’s office should have a system in place to regularly review compliance with office policies.

Standard 3-2.5 Removal or Suspension and Substitution of Chief Prosecutor

(a) Fair and objective procedures should be established by appropriate legislation that empowers the governor or other public official or body to suspend or remove, and supersede, a chief prosecutor for a jurisdiction and designate a replacement, upon making a public finding after reasonable notice and hearing that the prosecutor is incapable of fulfilling the duties of office due to physical or mental incapacity or for gross deviation from professional norms.

(b) The governor or other public official or body should be similarly empowered by law to substitute, in a particular matter or category of cases, special counsel in the place of the chief prosecutor, by consent or upon making a finding after fair process that substitution is required due to a serious conflict of interest or a gross deviation from professional norms.

(c) Removal, suspension or substitution of a prosecutor should not be permitted for improper or irrelevant partisan or personal reasons.

PART III: PROSECUTORIAL RELATIONSHIPS

Standard 3-3.1 Structure of, and Relationships Among, Prosecution Offices

(a) When possible, the geographic jurisdiction of a prosecution office should be determined on the basis of population, caseload, and other relevant factors sufficient to warrant at least one full-time prosecutor and necessary support staff.

(b) In all States, there should be coordination of the prosecution policies of local prosecution offices to improve the administration and consistency of justice throughout the State. To the extent needed, a central pool of supporting resources, forensic laboratories, and personnel such as investigators, additional prosecutors, accountants and other experts, should be maintained by the state government and should be available to assist local prosecutors. A coordinated forum for prosecutors to discuss issues of professional responsibility should also be available. In some jurisdictions, it may be appropriate to create a unified statewide system of prosecution, in which the state attorney general is the chief prosecutor and district or county or other local prosecutors are the attorney general’s deputies.

(c) Regardless of the statewide structure of prosecution offices, a state-wide association of prosecutors should be established. When questions or issues arise that could create important state-wide precedents, local prosecutors should advise and consult with the attorney general, the state-wide association, and the prosecutors in other local prosecution offices.

(d) Federal, state, and local prosecution offices should develop practices and procedures that encourage useful coordination with prosecutors within the jurisdiction and in other jurisdictions. Prosecutors should work to identify potential issues of conflict, coordinate with other prosecution offices in advance, and resolve inter-office disputes amicably and in the public interest.

Standard 3-3.2 Relationships With Law Enforcement

(a) The prosecutor should maintain respectful yet independent judgment when interacting with law enforcement personnel.

(b) The prosecutor may provide independent legal advice to law enforcement about actions in specific criminal matters and about law enforcement practices in general.

(c) The prosecutor should become familiar with and respect the experience and specialized expertise of law enforcement personnel. The prosecutor should promote compliance by law enforcement personnel with applicable legal rules, including rules against improper bias. The prosecutor’s office should keep law enforcement personnel informed of relevant legal and legal ethics issues and developments as they relate to prosecution matters, and advise law enforcement personnel of relevant prosecution policies and procedures. Prosecutors may exercise supervision over law enforcement personnel involved in particular prosecutions when in the best interests of justice and the public.

(d) Representatives of the prosecutor’s office should meet and confer regularly with law enforcement agencies regarding prosecution as well as law enforcement policies. The prosecutor’s office should assist in developing and administering training programs for law enforcement personnel regarding matters and cases being investigated, matters submitted for charging, and the law related to law enforcement activities.

Standard 3-3.3 Relationship With Courts, Defense Counsel and Others

(a) In all contacts with judges, the prosecutor should maintain a professional and independent relationship. A prosecutor should not engage in unauthorized ex parte discussions with, or submission of material to, a judge relating to a particular matter which is, or is likely to be, before the judge. With regard to generalized matters requiring judicial discussion (for example, case-management or administrative matters), the prosecutor should invite a representative defense counsel to join in the discussion to the extent practicable.

(b) When ex parte communications or submissions are authorized, the prosecutor should inform the court of material facts known to the prosecutor, including facts that are adverse, sufficient to enable the court to make a fair and informed decision. Except when non-disclosure is authorized, counsel should notify opposing counsel that an ex parte contact has occurred, without disclosing its content unless permitted.

(c) In written filings, the prosecutor should respectfully evaluate and respond as appropriate to opposing counsel’s arguments and representations, and avoid unnecessary personalized disparagement.

(d) The prosecutor should develop and maintain courteous and civil working relationships with judges and defense counsel, and should cooperate with them in developing solutions to address ethical, scheduling, or other issues that may arise in particular cases or generally in the criminal justice system. Prosecutors should cooperate with courts and organized bar associations in developing codes of professionalism and civility, and should abide by such codes that apply in their jurisdiction.

Standard 3-3.4 Relationship With Victims and Witnesses

(a) “Witness” in this Standard means any person who has or might have information about a matter, including victims.

(b) The prosecutor should know and follow the law and rules of the jurisdiction regarding victims and witnesses. In communicating with witnesses, the prosecutor should know and abide by law and ethics rules regarding the use of deceit and engaging in communications with represented, unrepresented, and organizational persons.

(c) The prosecutor or the prosecutor’s agents should seek to interview all witnesses, and should not act to intimidate or unduly influence any witness.

(d) The prosecutor should not use means that have no substantial purpose other than to embarrass, delay, or burden, and not use methods of obtaining evidence that violate legal rights. The prosecutor and prosecution agents should not misrepresent their status, identity or interests when communicating with a witness.

(e) The prosecutor should be permitted to compensate a witness for reasonable expenses such as costs of attending court, depositions pursuant to statute or court rule, and pretrial interviews, including transportation and loss of income. No other benefits should be provided to witnesses unless authorized by law, regulation, or well-accepted practice. All benefits provided to witnesses should be documented and disclosed to the defense. A prosecutor should not pay or provide a benefit to a witness in order to, or in an amount that is likely to, affect the substance or truthfulness of the witness’s testimony.

(f) A prosecutor should avoid the prospect of having to testify personally about the content of a witness interview. The prosecutor’s interview of most routine or government witnesses (for example, custodians of records or law enforcement agents) should not require a third-party observer. But when the need for corroboration of an interview is reasonably anticipated, the prosecutor should be accompanied by another trusted and credible person during the interview. The prosecutor should avoid being alone with any witness who the prosecutor reasonably believes has potential or actual criminal liability, or foreseeably hostile witnesses.

(g) The prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the right to independent counsel when the law so requires. Even if the law does not require it, a prosecutor should consider so advising a witness if the prosecutor reasonably believes the witness may provide self-incriminating information and the witness appears not to know his or her rights. However, a prosecutor should not so advise, or discuss or exaggerate the potential criminal liability of, a witness with a purpose, or in a manner likely, to intimidate the witness, to influence the truthfulness or completeness of the witness’s testimony, or to change the witness’s decision about whether to provide information.

(h) The prosecutor should not discourage or obstruct communication between witnesses and the defense counsel, other than the government’s employees or agents if consistent with applicable ethical rules. The prosecutor should not advise any person, or cause any person to be advised, to decline to provide defense counsel with information which such person has a right to give. The prosecutor may, however, fairly and accurately advise witnesses as to the likely consequences of their providing information, but only if done in a manner that does not discourage communication.

(i) Consistent with any specific laws or rules governing victims, the prosecutor should provide victims of serious crimes, or their representatives, an opportunity to consult with and to provide information to the prosecutor, prior to making significant decisions such as whether or not to prosecute, to pursue a disposition by plea, or to dismiss charges. The prosecutor should seek to ensure that victims of serious crimes, or their representatives, are given timely notice of:

(i) judicial proceedings relating to the victims’ case;

(ii) proposed dispositions of the case;

(iii) sentencing proceedings; and

(iv) any decision or action in the case that could result in the defendant’s provisional or final release from custody, or change of sentence.

(j) The prosecutor should ensure that victims and witnesses who may need protections against intimidation or retaliation are advised of and afforded protections where feasible.

(k) Subject to ethical rules and the confidentiality that criminal matters sometimes require, and unless prohibited by law or court order, the prosecutor should provide information about the status of matters in which they are involved to victims and witnesses who request it.

(l) The prosecutor should give witnesses reasonable notice of when their testimony at a proceeding is expected, and should not require witnesses to attend judicial proceedings unless their testimony is reasonably expected at that time, or their presence is required by law. When witnesses’ attendance is required, the prosecutor should seek to reduce to a minimum the time witnesses must spend waiting at the proceedings. The prosecutor should ensure that witnesses are given notice as soon as practicable of scheduling changes which will affect their required attendance at judicial proceedings.

(m) The prosecutor should not engage in any inappropriate personal relationship with any victim or other witness.

Standard 3-3.5 Relationship with Expert Witnesses

(a) An expert may be engaged for consultation only, or to prepare an evidentiary report or testimony. The prosecutor should know relevant rules governing expert witnesses, including possibly different disclosure rules governing experts who are engaged for consultation only.

(b) A prosecutor should evaluate all expert advice, opinions, or testimony independently, and not simply accept the opinion of a government or other expert based on employer, affiliation or prominence alone.

(c) Before engaging an expert, the prosecutor should investigate the expert’s credentials, relevant professional experience, and reputation in the field. The prosecutor should also examine a testifying expert’s background and credentials for potential impeachment issues. Before offering an expert as a witness, the prosecutor should investigate the scientific acceptance of the particular theory, method, or conclusions about which the expert would testify.

(d) A prosecutor who engages an expert to provide a testimonial opinion should respect the independence of the expert and should not seek to dictate the substance of the expert’s opinion on the relevant subject.

(e) Before offering an expert as a witness, the prosecutor should seek to learn enough about the substantive area of the expert’s expertise, including ethical rules that may be applicable in the expert’s field, to enable effective preparation of the expert, as well as effective cross-examination of any defense expert on the same topic. The prosecutor should explain to the expert that the expert’s role in the proceeding will be as an impartial witness called to aid the fact-finders, explain the manner in which the examination of the expert is likely to be conducted, and suggest likely impeachment questions the expert may be asked.

(f) The prosecutor should not pay or withhold any fee or provide or withhold a benefit for the purpose of influencing the substance of an expert’s testimony. The prosecutor should not fix the amount of the fee contingent upon the expert’s testimony or the result in the case. Nor should the prosecutor promise or imply the prospect of future work for the expert based on the expert’s testimony.

(g) The prosecutor should provide the expert with all information reasonably necessary to support a full and fair opinion. The prosecutor should be aware, and explain to the expert, that all communications with, and documents shared with, a testifying expert may be subject to disclosure to opposing counsel. The prosecutor should be aware of expert discovery rules and act to protect confidentiality and the public interest, for example by not sharing with the expert confidences and work product that the prosecutor does not want disclosed.

(h) The prosecutor should timely disclose to the defense all evidence or information learned from an expert that tends to negate the guilt of the accused or mitigate the offense, even if the prosecutor does not intend to call the expert as a witness.

Standard 3-3.6 When Physical Evidence With Incriminating Implications is Disclosed by the Defense 

When physical evidence is delivered to the prosecutor consistent with Defense Function Standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client. The prosecutor may, however, offer evidence of the fact of such delivery in response to a foundational objection to the evidence based on chain-of-custody concerns, or in a subsequent proceeding for the purpose of proving a crime or fraud regarding the evidence.

PART IV: INVESTIGATION; DECISIONS TO CHARGE, NOT CHARGE, OR DISMISS; AND GRAND JURY

Standard 3-4.1 Investigative Function of the Prosecutor

(a) When performing an investigative function, prosecutors should be familiar with and follow the ABA Standards on Prosecutorial Investigations.

(b) A prosecutor should not use illegal or unethical means to obtain evidence or information, or employ, instruct, or encourage others to do so. Prosecutors should research and know the law in this regard before acting, understanding that in some circumstances a prosecutor’s ethical obligations may be different from those of other lawyers.

Standard 3-4.2 Decisions to Charge Are the Prosecutor’s

(a) While the decision to arrest is often the responsibility of law enforcement personnel, the decision to institute formal criminal proceedings is the responsibility of the prosecutor. Where the law permits a law enforcement officer or other person to initiate proceedings by complaining directly to a judicial officer or the grand jury, the complainant should be required to present the complaint for prior review by the prosecutor, and the prosecutor’s recommendation regarding the complaint should be communicated to the judicial officer or grand jury.

(b) The prosecutor’s office should establish standards and procedures for evaluating complaints to determine whether formal criminal proceedings should be instituted. 

(c) In determining whether formal criminal charges should be filed, prosecutors should consider whether further investigation should be undertaken. After charges are filed the prosecutor should oversee law enforcement investigative activity related to the case.

(d) If the defendant is not in custody when charged, the prosecutor should consider whether a voluntary appearance rather than a custodial arrest would suffice to protect the public and ensure the defendant’s presence at court proceedings.

Standard 3-4.3 Minimum Requirements for Filing and Maintaining Criminal Charges 

(a) A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.

(b) After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.

(c) If a prosecutor has significant doubt about the guilt of the accused or the quality, truthfulness, or sufficiency of the evidence in any criminal case assigned to the prosecutor, the prosecutor should disclose those doubts to supervisory staff. The prosecutor’s office should then determine whether it is appropriate to proceed with the case.

(d) A prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.

Standard 3-4.4  Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges           

(a) In order to fully implement the prosecutor’s functions and duties, including the obligation to enforce the law while exercising sound discretion, the prosecutor is not obliged to file or maintain all criminal charges which the evidence might support. Among the factors which the prosecutor may properly consider in exercising discretion to initiate, decline, or dismiss a criminal charge, even though it meets the requirements of Standard 3-4.3, are:

(i) the strength of the case;

(ii) the prosecutor’s doubt that the accused is in fact guilty;

(iii) the extent or absence of harm caused by the offense;

(iv) the impact of prosecution or non-prosecution on the public welfare;

(v) the background and characteristics of the offender, including any voluntary restitution or efforts at rehabilitation;

(vi) whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender;

(vii) the views and motives of the victim or complainant;

(viii) any improper conduct by law enforcement;

(ix) unwarranted disparate treatment of similarly situated persons;

(x) potential collateral impact on third parties (children involved, etc..) , including witnesses or victims;

(xi) cooperation of the offender in the apprehension or conviction of others;

(xii) the possible influence of any cultural, ethnic, socioeconomic or other improper biases;

(xiii) changes in law or policy;

(xiv) the fair and efficient distribution of limited prosecutorial resources;

(xv) the likelihood of prosecution by another jurisdiction; and

(xvi) whether the public’s interests in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies.

(b) In exercising discretion to file and maintain charges, the prosecutor should not consider:

(i) partisan or other improper political or personal considerations;

(ii) hostility or personal animus towards a potential subject, or any other improper motive of the prosecutor; or

(iii) the impermissible criteria described in Standard 1.6 above.

(c) A prosecutor may file and maintain charges even if juries in the jurisdiction have tended to acquit persons accused of the particular kind of criminal act in question.

(d) The prosecutor should not file or maintain charges greater in number or degree than can reasonably be supported with evidence at trial and are necessary to fairly reflect the gravity of the offense or deter similar conduct.

(e) A prosecutor may condition a dismissal of charges, nolle prosequi, or similar action on the accused’s relinquishment of a right to seek civil redress only if the accused has given informed consent, and such consent is disclosed to the court. A prosecutor should not use a civil waiver to avoid a bona fide claim of improper law enforcement actions, and a decision not to file criminal charges should be made on its merits and not for the purpose of obtaining a civil waiver.

(f) The prosecutor should consider the possibility of a noncriminal disposition, formal or informal, or a deferred prosecution or other diversionary disposition, when deciding whether to initiate or prosecute criminal charges. The prosecutor should be familiar with the services and resources of other agencies, public or private, that might assist in the evaluation of cases for diversion or deferral from the criminal process.

Standard 3-4.5 Relationship with a Grand Jury

(a) In presenting a matter to a criminal grand jury, and in light of its ex parte character, the prosecutor should respect the independence of the grand jury and should not preempt a function of the grand jury, mislead the grand jury, or abuse the processes of the grand jury.

(b) Where the prosecutor is authorized to act as a legal advisor to the grand jury, the prosecutor should appropriately explain the law and may, if permitted by law, express an opinion on the legal significance of the evidence, but should give due deference to the grand jury as an independent legal body.

(c) The prosecutor should not make statements or arguments to a grand jury in an effort to influence grand jury action in a manner that would be impermissible in a trial.

(d) The entirety of the proceedings occurring before a grand jury, including the prosecutor’s communications with and presentations and instructions to the grand jury, should be recorded in some manner, and that record should be preserved. The prosecutor should avoid off-the-record communications with the grand jury and with individual grand jurors.

Standard 3-4.6 Quality and Scope of Evidence Before a Grand Jury

(a) A prosecutor should not seek an indictment unless the prosecutor reasonably believes the charges are supported by probable cause and that there will be admissible evidence sufficient to support the charges beyond reasonable doubt at trial. A prosecutor should advise a grand jury of the prosecutor’s opinion that it should not indict if the prosecutor believes the evidence presented does not warrant an indictment.

(b) In addition to determining what criminal charges to file, a grand jury may properly be used to investigate potential criminal conduct, and also to determine the sense of the community regarding potential charges.

(c) A prosecutor should present to a grand jury only evidence which the prosecutor believes is appropriate and authorized by law for presentation to a grand jury. The prosecutor should be familiar with the law of the jurisdiction regarding grand juries, and may present witnesses to summarize relevant evidence to the extent the law permits.

(d) When a new grand jury is empanelled, a prosecutor should ensure that the grand jurors are appropriately instructed, consistent with the law of the jurisdiction, on the grand jury’s right and ability to seek evidence, ask questions, and hear directly from any available witnesses, including eyewitnesses.

(e) A prosecutor with personal knowledge of evidence that directly negates the guilt of a subject of the investigation should present or otherwise disclose that evidence to the grand jury. The prosecutor should relay to the grand jury any request by the subject or target of an investigation to testify before the grand jury, or present other non-frivolous evidence claimed to be exculpatory.

(f) If the prosecutor concludes that a witness is a target of a criminal investigation, the prosecutor should not seek to compel the witness’s testimony before the grand jury absent immunity. The prosecutor should honor, however, a reasonable request from a target or subject who wishes to testify before the grand jury.

(g) Unless there is a reasonable possibility that it will facilitate flight of the target, endanger other persons, interfere with an ongoing investigation, or obstruct justice, the prosecutor should give notice to a target of a grand jury investigation, and offer the target an opportunity to testify before the grand jury. Prior to taking a target’s testimony, the prosecutor should advise the target of the privilege against self-incrimination and obtain a voluntary waiver of that right.

(h) The prosecutor should not seek to compel the appearance of a witness whose activities are the subject of the grand jury’s inquiry, if the witness states in advance that if called the witness will claim the constitutional privilege not to testify, and provides a reasonable basis for such claim. If warranted, the prosecutor may judicially challenge such a claim of privilege or seek a grant of immunity according to the law.

(i) The prosecutor should not issue a grand jury subpoena to a criminal defense attorney or defense team member, or other witness whose testimony reasonably might be protected by a recognized privilege, without considering the applicable law and rules of professional responsibility in the jurisdiction.

(j) Except where permitted by law, a prosecutor should not use the grand jury in order to obtain evidence to assist the prosecution’s preparation for trial of a defendant who has already been charged. A prosecutor may, however, use the grand jury to investigate additional or new charges against a defendant who has already been charged.

(k) Except where permitted by law, a prosecutor should not use a criminal grand jury solely or primarily for the purpose of aiding or assisting in an administrative or civil inquiry.

PART V: PRETRIAL ACTIVITIES and NEGOTIATED DISPOSITIONS

Standard 3-5.1 Role in First Appearance and Preliminary Hearing

(a) A prosecutor should be present at any first appearance of the accused before a judicial officer, and at any preliminary hearing.

(b) At or before the first appearance, the prosecutor should consider:

(i) whether the accused has counsel, and if not, whether and when counsel will be made available or waived;

(ii) whether the accused appears to be mentally competent, and if not, whether to seek an evaluation;

(iii) whether the accused should be released or detained pending further proceedings and, if released, whether supervisory conditions should be imposed; and

(iv) what further proceedings should be scheduled to move the matter toward timely resolution.

(c) The prosecutor handling the first appearance should ensure that the charges are consistent with the conduct described in the available law enforcement reports and any other information the prosecutor possesses.

(d) If the accused does not yet have counsel and has not waived counsel, the prosecutor should ask the court not to engage in substantive proceedings, other than a decision to release the accused. The prosecutor should not obtain a waiver of other important pretrial rights, such as the right to a preliminary hearing, from an unrepresented accused unless that person has been judicially authorized to proceed pro se.

(e) The prosecutor should not approach or communicate with an accused unless a voluntary waiver of counsel has been entered or the accused’s counsel consents. If the accused does not have counsel, the prosecutor should make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel, and is given reasonable opportunity to obtain counsel.

(f) If the prosecutor believes pretrial release is appropriate, or it is ordered, the prosecutor should cooperate in arrangements for release under the prevailing pretrial release system.

(g) If the prosecutor has reasonable concerns about the accused’s mental competence, the prosecutor should bring those concerns to the attention of defense counsel and, if necessary, the judicial officer.

(h) The prosecutor should not seek to delay a prompt judicial determination of probable cause for criminal charges without good cause, particularly if the accused is in custody.

Standard 3-5.2  The Decision to Recommend Release or Seek Detention 

(a) The prosecutor should favor pretrial release of a criminally accused, unless detention is necessary to protect individuals or the community or to ensure the return of the defendant for future proceedings.

(b) The prosecutor’s decision to recommend pretrial release or seek detention should be based on the facts and circumstances of the defendant and the offense, rather than made categorically. The prosecutor should consider information relevant to these decisions from all sources, including the defendant.

(c) The prosecutor should cooperate with pretrial services or other personnel who review or assemble information to be provided to the court regarding pretrial release determinations.

(d) The prosecutor should be open to reconsideration of pretrial detention or release decisions based on changed circumstances, including an unexpectedly lengthy period of detention.

Standard 3-5.3 Preparation for Court Proceedings, and Recording and Transmitting Information 

(a) The prosecutor should prepare in advance for court proceedings unless that is impossible. Adequate preparation depends on the nature of the proceeding and the time available, and will often include: reviewing available documents; considering what issues are likely to arise and the prosecution’s position regarding those issues; how best to present the issues and what solutions might be offered; relevant legal research and factual investigation; and contacting other persons who might be of assistance in addressing the anticipated issues. If the prosecutor has not had adequate time to prepare and is unsure of the relevant facts or law, the prosecutor should communicate to the court the limits of the prosecutor’s knowledge or preparation.

(b) The prosecutor should make effort to appear at all hearings in cases assigned to the prosecutor. A prosecutor who substitutes at a court proceeding for another prosecutor assigned to the case should make reasonable efforts to be adequately informed about the case and issues likely to come up at the proceeding, and to adequately prepare.

(c) The prosecutor handling any court appearance should document what happens at the proceeding, to aid the prosecutor’s later memory and so that necessary information will be available to other prosecutors who may handle the case in the future.

(d) The prosecutor should take steps to ensure that any court order issued to the prosecution is transmitted to the appropriate persons necessary to effectuate the order.

(e) The prosecutor’s office should be provided sufficient resources and be organized to permit adequate preparation for court proceedings.

Standard 3-5.4 Identification and Disclosure of Information and Evidence

 (a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted.

(b) The prosecutor should diligently advise other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the prosecutor information described in (a) above.

(c) Before trial of a criminal case, a prosecutor should make timely disclosure to the defense of information described in (a) above that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding, unless relieved of this responsibility by a court’s protective order. (Regarding discovery prior to a guilty plea, see Standard 3-5.6(f) below.) A prosecutor should not intentionally attempt to obscure information disclosed pursuant to this standard by including it without identification within a larger volume of materials.

(d) The obligations to identify and disclose such information continue throughout the prosecution of a criminal case.

(e) A prosecutor should timely respond to legally proper discovery requests, and make a diligent effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court. When the defense makes requests for specific information, the prosecutor should provide specific responses rather than merely a general acknowledgement of discovery obligations. Requests and responses should be tailored to the case and “boilerplate” requests and responses should be disfavored.

(f) The prosecutor should make prompt efforts to identify and disclose to the defense any physical evidence that has been gathered in the investigation, and provide the defense a reasonable opportunity to examine it.

(g) A prosecutor should not avoid pursuit of information or evidence because the prosecutor believes it will damage the prosecution’s case or aid the accused.

(h) A prosecutor should determine whether additional statutes, rules or caselaw may govern or restrict the disclosure of information, and comply with these authorities absent court order.

Standard 3-5.5   Preservation of Information and Evidence

(a) The prosecutor should make reasonable efforts to preserve, and direct the prosecutor’s agents to preserve, relevant materials during and after a criminal case, including

(i) evidence relevant to investigations as well as prosecutions, whether or not admitted at trial;

(ii) information identified pursuant to Standard 3-5.4(a); and

(iii) other materials necessary to support significant decisions made and conclusions reached by the prosecution in the course of an investigation and prosecution.

(b) The prosecutor’s office should develop policies regarding the method and duration of preservation of such materials. Such policies should be consistent with applicable rules and laws (such as public records laws) in the jurisdiction. These policies, and individual preservation decisions, should consider the character and seriousness of each case, the character of the particular evidence or information, the likelihood of further challenges to judgments following conviction, and the resources available for preservation. Physical evidence should be preserved so as to reasonably preserve its forensic characteristics and utility.

(c) Materials should be preserved at least until a criminal case is finally resolved or is final on appeal and the time for further appeal has expired. In felony cases, materials should be preserved until post-conviction litigation is concluded or time-limits have expired. In death penalty cases, information should be preserved until the penalty is carried out or is precluded.

(d) The prosecutor should comply with additional statutes, rules or caselaw that may govern the preservation of evidence.

Standard 3-5.6 Conduct of Negotiated Disposition Discussions

(a) The prosecutor should be open, at every stage of a criminal matter, to discussions with defense counsel concerning disposition of charges by guilty plea or other negotiated disposition.

(b) A prosecutor should not engage in disposition discussions directly with a represented defendant, except with defense counsel’s approval. Where a defendant has properly waived counsel, the prosecutor may engage in disposition discussions with the defendant, and should make and preserve a record of such discussions.

(c) The prosecutor should not enter into a disposition agreement before having information sufficient to assess the defendant’s actual culpability. The prosecutor should consider collateral consequences of a conviction before entering into a disposition agreement. The prosecutor should consider factors listed in Standard 3-4.4(a), and not be influenced in disposition discussions by inappropriate factors such as those listed in Standards 3-1.6 and 3-4.4(b).

(d) The prosecutor should not set unreasonably short deadlines, or demand conditions for a disposition, that are so coercive that the voluntariness of a plea or the effectiveness of defense counsel is put into question. A prosecutor may, however, set a reasonable deadline before trial or hearing for acceptance of a disposition offer.

(e) A prosecutor should not knowingly make false statements of fact or law in the course of disposition discussions.

(f) Before entering into a disposition agreement, the prosecutor should disclose to the defense a factual basis sufficient to support the charges in the proposed agreement, and information currently known to the prosecutor that tends to negate guilt, mitigates the offense or is likely to reduce punishment.

(g) A prosecutor should not agree to a guilty plea if the prosecutor reasonably believes that sufficient admissible evidence to support conviction beyond reasonable doubt would be lacking if the matter went to trial.

Standard 3-5.7 Establishing and Fulfilling Conditions of Negotiated Dispositions

(a) A prosecutor should not demand terms in a negotiated disposition agreement that are unlawful or in violation of public policy.

(b) The prosecutor may properly promise the defense that the prosecutor will or will not take a particular position concerning sentence and conditions. The prosecutor should not, however, imply a greater power to influence the disposition of a case than is actually possessed.

(c) The prosecutor should memorialize all promises and conditions that are part of the agreement, and ensure that any written disposition agreement accurately and completely reflects the precise terms of the agreement including the prosecutor’s promises and the defendant’s obligations. At any court hearing to finalize a negotiated disposition, the prosecutor should ensure that all relevant details of the agreement have been placed on the record. The presumption is that the hearing and record will be public, but in some cases the hearing or record (or a portion) may be sealed for good cause.

(d) Once a disposition agreement is final and accepted by the court, the prosecutor should comply with, and make good faith efforts to have carried out, the government’s obligations. The prosecutor should construe agreement conditions, and evaluate the defendant’s performance including any cooperation, in a good-faith and reasonable manner.

(e) If the prosecutor believes that a defendant has breached an agreement that has been accepted by the court, the prosecutor should notify the defense regarding the prosecutor’s belief and any intended adverse action. If the defense presents a good-faith disagreement and the parties cannot quickly resolve it, the prosecutor should not act before judicial resolution.

(f) If the prosecutor reasonably believes that a court is acting inconsistently with any term of a negotiated disposition, the prosecutor should raise the matter with the court.

Standard 3-5.8 Waiver of Rights as Condition of Disposition Agreements 

(a) A prosecutor should not condition a disposition agreement on a waiver of the right to appeal the terms of a sentence which exceeds an agreed-upon or reasonably anticipated sentence. Any waiver of appeal of sentence should be comparably binding on the defendant and the prosecution.

(b) A prosecutor should not suggest or require, as a condition of a disposition agreement, any waiver of post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence, unless such claims are based on past instances of such conduct that are specifically identified in the agreement or in the transcript of proceedings that address the agreement. If a proposed disposition agreement contains such a waiver regarding ineffective assistance of counsel, the prosecutor should ensure that the defendant has been provided the opportunity to consult with independent counsel regarding the waiver before agreeing to the disposition.

(c) A prosecutor may propose or require other sorts of waivers on an individualized basis if the defendant’s agreement is knowing and voluntary. No waivers of any kind should be accepted without an exception for manifest injustice based on newly-discovered evidence, or actual innocence.

(d) Although certain claims may have been waived, a prosecutor should not condition a disposition agreement on a complete waiver of the right to file a habeas corpus or other comparable post-conviction petition.

(e) A prosecutor should not request or rely on waivers to hide an injustice or material flaw in the case which is undisclosed to the defense.

Standard 3-5.9 Record of Reasons for Dismissal of Charges

When criminal charges are dismissed on the prosecution’s motion, including by plea of nolle prosequi or its equivalent, the prosecutor should make and retain an appropriate record of the reasons for the dismissal, and indicate on the record whether the dismissal was with or without prejudice.

PART VI: COURT HEARINGS AND TRIAL

Standard 3-6.1    Scheduling Court Hearings

Final control over the scheduling of court appearances, hearings and trials in criminal matters should rest with the court rather than the parties. When the prosecutor is aware of facts that would affect scheduling, the prosecutor should advise the court and, if the facts are case-specific, defense counsel.

Standard 3-6.2    Civility With Courts, Opposing Counsel, and Others

(a) As an officer of the court, the prosecutor should support the authority of the court and the dignity of the courtroom by adherence to codes of professionalism and civility, and by manifesting a professional and courteous attitude toward the judge, opposing counsel, witnesses, defendants, jurors, court staff and others. In court as elsewhere, the prosecutor should not display or act out of any improper or unlawful bias.

(b) When court is in session, unless otherwise permitted by the court, the prosecutor should address the court and not address other counsel or the defendant directly on any matter related to the case.

(c) The prosecutor should comply promptly and civilly with a court’s orders or seek appropriate relief from such order. If the prosecutor considers an order to be significantly erroneous or prejudicial, the prosecutor should ensure that the record adequately reflects the events. The prosecutor has a right to make respectful objections and reasonable requests for reconsideration, and to seek other relief as the law permits. If a judge prohibits making an adequate objection, proffer, or record, the prosecutor may take other lawful steps to protect the public interest.

Standard 3-6.3 Selection of Jurors

(a) The prosecutor’s office should be aware of legal standards that govern the selection of jurors, and train prosecutors to comply. The prosecutor should prepare to effectively discharge the prosecution function in the selection of the jury, including exercising challenges for cause and peremptory challenges. The prosecutor’s office should also be aware of the process used to select and summon the jury pool and bring legal deficiencies to the attention of the court.

(b) The prosecutor should not strike jurors based on any criteria rendered impermissible by the constitution, statutes, applicable rules of the jurisdiction, or these standards, including race, sex, religion, national origin, disability, sexual orientation or gender identity. The prosecutor should consider contesting a defense counsel’s peremptory challenges that appear to be based upon such criteria.

(c) In cases in which the prosecutor conducts a pretrial investigation of the background of potential jurors, the investigative methods used should not harass, intimidate, or unduly embarrass or invade the privacy of potential jurors. Absent special circumstances, such investigation should be restricted to review of records and sources of information already in existence and to which access is lawfully allowed. If the prosecutor uses record searches that are unavailable to the defense, such as criminal record databases, the prosecutor should share the results with defense counsel or seek a judicial protective order.

(d) The opportunity to question jurors personally should be used solely to obtain information relevant to the well-informed exercise of challenges. The prosecutor should not seek to commit jurors on factual issues likely to arise in the case, and should not intentionally present arguments, facts or evidence which the prosecutor reasonably should know will not be admissible at trial. Voir dire should not be used to argue the prosecutor’s case to the jury, or to unduly ingratiate counsel with the jurors.

(e) During voir dire, the prosecutor should seek to minimize any undue embarrassment or invasion of privacy of potential jurors, for example by seeking to inquire into sensitive matters outside the presence of other potential jurors, while still enabling fair and efficient juror selection.

(f) If the court does not permit voir dire by counsel, the prosecutor should provide the court with suggested questions in advance, and request specific follow-up questions during the selection process when necessary to ensure fair juror selection.

(g) If the prosecutor has reliable information that conflicts with a potential juror’s responses, or that reasonably would support a “for cause” challenge by any party, the prosecutor should inform the court and, unless the court orders otherwise, defense counsel.

Standard 3-6.4 Relationship With Jurors

(a) The prosecutor should not communicate with persons the prosecutor knows to be summoned for jury duty or impaneled as jurors, before or during trial, other than in the lawful conduct of courtroom proceedings. The prosecutor should avoid even the appearance of improper communications with jurors, and minimize any out-of-court proximity to or contact with jurors. Where out-of-court contact cannot be avoided, the prosecutor should not communicate about or refer to the specific case.

(b) The prosecutor should treat jurors with courtesy and respect, while avoiding a show of undue solicitude for their comfort or convenience.

(c) After discharge of a juror, a prosecutor should avoid contacts that may harass or embarrass the juror, that criticize the jury’s actions or verdict, or that express views that could otherwise adversely influence the juror’s future jury service. The prosecutor should know and comply with applicable rules and law governing the subject.

(d) After a jury is discharged, the prosecutor may, if no statute, rule, or order prohibits such action, communicate with jurors to investigate whether a verdict may be subject to legal challenge, or to evaluate the prosecution’s performance for improvement in the future. The prosecutor should consider requesting the court to instruct the jury that, if it is not prohibited by law, it is not improper for jurors to discuss the case with the lawyers, although they are not required to do so. Any post-discharge communication with a juror should not disparage the criminal justice system and the jury trial process, and should not express criticism of the jury’s actions or verdict.

(e) A prosecutor who learns reasonably reliable information that there was a problem with jury deliberations or conduct that could support an attack on a judgment of conviction and that is recognized as potentially valid in the jurisdiction, should promptly report that information to the appropriate judicial officer and, unless the court orders otherwise, defense counsel.

Standard 3-6.5 Opening Statement at Trial

(a) The prosecutor should give an opening statement before the presentation of evidence begins.

(b) The prosecutor’s opening statement at trial should be confined to a fair statement of the case from the prosecutor’s perspective, and discussion of evidence that the prosecutor reasonably believes will be available, offered and admitted to support the prosecution case. The prosecutor’s opening should avoid speculating about what defenses might be raised by the defense unless the prosecutor knows they will be raised.

(c) The prosecutor’s opening statement should be made without expressions of personal opinion, vouching for witnesses, inappropriate appeals to emotion or personal attacks on opposing counsel. The prosecutor should scrupulously avoid any comment on a defendant’s right to remain silent.

(d) When the prosecutor has reason to believe that a portion of the opening statement may be objectionable, the prosecutor should raise that point with defense counsel and, if necessary, the court, in advance. Similarly, visual aids or exhibits that the prosecutor intends to use during opening statement should be shown to defense counsel in advance.

Standard 3-6.6 Presentation of Evidence

(a) The prosecutor should not offer evidence that the prosecutor does not reasonably believe to be true, whether by documents, tangible evidence, or the testimony of witnesses. When a prosecutor has reason to doubt the truth or accuracy of particular evidence, the prosecutor should take reasonable steps to determine that the evidence is reliable, or not present it.

(b) If the prosecutor reasonably believes there has been misconduct by opposing counsel, a witness, the court or other persons that affects the fair presentation of the evidence, the prosecutor should challenge the perceived misconduct by appealing or objecting to the court or through other appropriate avenues, and not by engaging in retaliatory conduct that the prosecutor knows to be improper.

(c) During the trial, if the prosecutor discovers that false evidence or testimony has been introduced by the prosecution, the prosecutor should take reasonable remedial steps. If the witness is still on the stand, the prosecutor should attempt to correct the error through further examination. If the falsity remains uncorrected or is not discovered until the witness is off the stand, the prosecutor should notify the court and opposing counsel for determination of an appropriate remedy.

(d) The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally objectionable questions, or making impermissible comments or arguments. If the prosecutor is uncertain about the admissibility of evidence, the prosecutor should seek and obtain resolution from the court before the hearing or trial if possible, and reasonably in advance of the time for proffering the evidence before a jury.

(e) The prosecutor should exercise strategic judgment regarding whether to object or take exception to evidentiary rulings that are materially adverse to the prosecution, and not make every possible objection. The prosecutor should not make objections without a reasonable basis, or for improper reasons such as to harass or to break the flow of opposing counsel’s presentation. The prosecutor should make an adequate record for appeal, and consider the possibility of an interlocutory appeal regarding significant adverse rulings if available.

(f) The prosecutor should not display tangible evidence (and should object to such display by the defense) until it is admitted into evidence, except insofar as its display is necessarily incidental to its tender, although the prosecutor may seek permission to display admissible evidence during opening statement. The prosecutor should avoid displaying even admitted evidence in a manner that is unduly prejudicial.

Standard 3-6.7 Examination of Witnesses in Court

(a) The prosecutor should conduct the examination of witnesses fairly and with due regard for dignity and legitimate privacy concerns, and without seeking to intimidate or humiliate a witness unnecessarily.

(b) The prosecutor should not use cross-examination to discredit or undermine a witness’s testimony, if the prosecutor knows the testimony to be truthful and accurate.

(c) The prosecutor should not call a witness to testify in the presence of the jury, or require the defense to do so, when the prosecutor knows the witness will claim a valid privilege not to testify. If the prosecutor is unsure whether a particular witness will claim a privilege to not testify, the prosecutor should alert the court and defense counsel in advance and outside the presence of the jury.

(d) The prosecutor should not ask a question that implies the existence of a factual predicate for which a good faith belief is lacking.

Standard 3-6.8 Closing Arguments to the Trier of Fact

(a) In closing argument to a jury (or to a judge sitting as trier of fact), the prosecutor should present arguments and a fair summary of the evidence that proves the defendant guilty beyond reasonable doubt. The prosecutor may argue all reasonable inferences from the evidence in the record, unless the prosecutor knows an inference to be false. The prosecutor should, to the extent time permits, review the evidence in the record before presenting closing argument. The prosecutor should not knowingly misstate the evidence in the record, or argue inferences that the prosecutor knows have no good-faith support in the record. The prosecutor should scrupulously avoid any reference to a defendant’s decision not to testify.

(b) The prosecutor should not argue in terms of counsel’s personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.

(c) The prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact. The prosecutor should make only those arguments that are consistent with the trier’s duty to decide the case on the evidence, and should not seek to divert the trier from that duty.

(d) If the prosecutor presents rebuttal argument, the prosecutor may respond fairly to arguments made in the defense closing argument, but should not present or raise new issues. If the prosecutor believes the defense closing argument is or was improper, the prosecutor should timely object and request relief from the court, rather than respond with arguments that the prosecutor knows are improper.

Standard 3-6.9 Facts Outside the Record

When before a jury, the prosecutor should not knowingly refer to, or argue on the basis of, facts outside the record, unless such facts are matters of common public knowledge based on ordinary human experience, or are matters of which a court clearly may take judicial notice, or are facts the prosecutor reasonably believes will be entered into the record at that proceeding. In a nonjury context the prosecutor may refer to extra-record facts relevant to issues about which the court specifically inquires, but should note that they are outside the record.

Standard 3-6.10 Comments by Prosecutor After Verdict or Ruling

(a) The prosecutor should respectfully accept acquittals. Regarding other adverse rulings (including the rare acquittal by a judge that is appealable), while the prosecutor may publicly express respectful disagreement and an intention to pursue lawful options for review, the prosecutor should refrain from public criticism of any participant.  Public comments after a verdict or ruling should be respectful of the legal system and process.

(b) The prosecutor may publicly praise a jury verdict or court ruling, compliment government agents or others who aided in the matter, and note the social value of the ruling or event. The prosecutor should not publicly gloat or seek personal aggrandizement regarding a verdict or ruling.

PART VII: POST-TRIAL MOTIONS AND SENTENCING

Standard 3-7.1 Post-trial Motions 

The prosecutor should conduct a fair evaluation of post-trial motions, determine their merit, and respond accordingly and respectfully. The prosecutor should not oppose motions at any stage without a reasonable basis for doing so.

Standard 3-7.2 Sentencing

(a) The severity of sentences imposed should not be used as a measure of a prosecutor’s effectiveness.

(b) The prosecutor should be familiar with relevant sentencing laws, rules, consequences and options, including alternative non-imprisonment sentences. Before or soon after charges are filed, and throughout the pendency of the case, the prosecutor should evaluate potential consequences of the prosecution and available sentencing options, such as forfeiture, restitution, and immigration effects, and be prepared to actively advise the court in sentencing.

(c) The prosecutor should seek to assure that a fair and informed sentencing judgment is made, and to avoid unfair sentences and disparities.

(d) In the interests of uniformity, the prosecutor’s office should develop consistent policies for evaluating and making sentencing recommendations, and not leave complete discretion for sentencing policy to individual prosecutors.

(e) The prosecutor should know the relevant laws and rules regarding victims’ rights, and facilitate victim participation in the sentencing process as the law requires or permits.

Standard 3-7.3 Information Relevant to Sentencing

(a) The prosecutor should assist the court in obtaining complete and accurate information for use in sentencing, and should cooperate fully with the court’s and staff’s presentence investigations. The prosecutor should provide any information that the prosecution believes is relevant to the sentencing to the court and to defense counsel. A record of such information provided to the court and counsel should be made, so that it may be reviewed later if necessary. If material incompleteness or inaccuracy in a presentence report comes to the prosecutor’s attention, the prosecutor should take steps to present the complete and correct information to the court and defense counsel.

(b) The prosecutor should disclose to the defense and to the court, at or before the sentencing proceeding, all information that tends to mitigate the sentence and is known to the prosecutor, unless the prosecutor is relieved of this responsibility by a court order.

(c) Prior to sentencing, the prosecutor should disclose to the defense any evidence or information it provides, whether by document or orally, to the court or presentence investigator in aid of sentencing, unless contrary to law or rule in the jurisdiction or a protective order has been sought.

Rule 3.8 $pecial Re$pon$ibilitie$ of a Pro$ecutor

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

• (a) not institute or continue to prosecute a charge that the prosecutor knows* is not supported by probable cause;
• (b) make reasonable* efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable* opportunity to obtain counsel;
• (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal* has approved the appearance of the accused in propria persona;
• (d) make timely disclosure to the defense of all evidence or information known* to the prosecutor that the prosecutor knows* or reasonably should know* tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;* and
• (e) exercise reasonable* care to prevent persons* under the supervision or direction of the prosecutor, including 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.
• (f) When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
  • (1) promptly disclose that evidence to an appropriate court or authority, and
  • (2) if the conviction was obtained in the prosecutor’s jurisdiction,
    • (i) promptly disclose that evidence to the defendant unless a court
      authorizes delay, and
    • (ii) undertake further investigation, or make reasonable* efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
• (g) When a prosecutor knows* of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. The repealed prior version of this rule that was effective from November 1, 2018 to May 31, 2020, and the Executive Summary concerning those amendments can be found here.

Comment
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.* This rule is intended to achieve those results. All lawyers in government service remain bound by rules 3.1 and 3.4.

[2] Paragraph (c) does not forbid the lawful questioning of an uncharged suspect who has knowingly* waived the right to counsel and the right to remain silent. Paragraph (c) also does not forbid prosecutors from seeking from an unrepresented accused a reasonable* waiver of time for initial appearance or preliminary hearing as a means of facilitating the accused’s voluntary cooperation in an ongoing law enforcement investigation.

[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the
duty to disclose impeachment evidence or information that a prosecutor knows* or reasonably should know* casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (d) does not
require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (d) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.

[4] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal* if disclosure of information to the defense could result in substantial* harm to an individual or to the public interest.

[5] Paragraph (e) supplements rule 3.6, which prohibits extrajudicial statements that have a substantial* likelihood of prejudicing an adjudicatory proceeding. Paragraph (e) is not intended to restrict the statements which a prosecutor may make which comply with rule 3.6(b) or 3.6(c).

[6] Prosecutors have a duty to supervise the work of subordinate lawyers and nonlawyer employees or agents. (See rules 5.1 and 5.3.) Ordinarily, the reasonable* care standard of paragraph (e) will be satisfied if the prosecutor issues the appropriate
cautions to law enforcement personnel and other relevant individuals.

[7] When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a person* outside the prosecutor’s jurisdiction was convicted of a crime that the person* did not commit, paragraph (f) requires prompt disclosure to  the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (f) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable* efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court authorized delay, to the defendant. Disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. (See rule 4.2.) Statutes may require a prosecutor to preserve certain types of evidence in criminal matters. (See Pen. Code, §§ 1417.1-1417.9.) In addition, prosecutors must obey file preservation orders concerning rights of discovery guaranteed by the Constitution and statutory provisions. (See People v. Superior Court (Morales) (2017) 2 Cal.5th 523 [213 Cal.Rptr.3d 581]; Shorts v. Superior Court (2018) 24 Cal.App.5th 709 [234 Cal.Rptr.3d 392].)

[8] Under paragraph (g), once the prosecutor knows* of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Depending upon the
circumstances, steps to remedy the conviction could include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of paragraphs (f) and (g), though subsequently determined to have been erroneous, does not constitute a violation of this rule. source

PART VIII: APPEALS AND OTHER CONVICTION CHALLENGES  

Standard 3-8.1 Duty To Defend Conviction Not Absolute 

The prosecutor has a duty to defend convictions obtained after fair process. This duty is not absolute, however, and the prosecutor should temper the duty to defend with independent professional judgment and discretion. The prosecutor should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred.

Standard 3-8.2 Appeals — General Principles  

(a) All prosecutors should be sufficiently knowledgeable about appellate practice to be able to make a record sufficient to preserve issues and arguments for appeal, and should make such a record at the trial court level.

(b) When the prosecutor receives an adverse ruling, the prosecutor should consider whether it may be appealed. If the ruling may be appealed, the prosecutor should consider whether an appeal should be filed, and refer it to an appellate prosecutor if appropriate for decision.

(c) When considering whether an adverse ruling should be appealed, the prosecutor should evaluate not only the legal merits, but also whether it is in the interests of justice to pursue such an appeal, taking into account the benefits to the prosecution, the judicial system, and the public, as well as the costs of the appellate process and of delay to the prosecution, defendant, victims and witnesses.

(d) A prosecutor handling a criminal appeal should know the specific rules, practices and procedures that govern appeals in the jurisdiction.

(e) The prosecutor’s office should designate one or more prosecutors in the office to develop expertise regarding appellate law and procedure, and should develop contacts with other offices’ prosecutors who have such expertise. The prosecutor’s office should develop consistent policies and positions regarding issues that are common or recurring in the appellate process or court. The prosecutor’s office should regularly notify its prosecutors and law enforcement agents about new developments in the law or judicial decisions, and should provide regular training to such personnel on such topics.

(f) A prosecutor handling a criminal appeal who was not counsel in the trial court should consult with the trial prosecutor, but should exercise independent judgment in reviewing the record and the defense arguments. The appellate prosecutor should not make or oppose arguments in an appeal without a reasonable legal basis.

Standard 3-8.3 Responses to New or Newly-Discovered Evidence or Law

If a prosecutor learns of credible and material information creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, the prosecutor should comply with ABA Model Rules of Professional Conduct 3.8(g) and (h). The prosecutor’s office should develop policies and procedures to address such information, and take actions that are consistent with applicable law, rules, and the duty to pursue justice.

Standard 3-8.4 Challenges to the Effectiveness of Defense Counsel  

(a) In any post-conviction challenge to the effectiveness of defense counsel, the prosecutor should be cognizant of the defendant’s potential attorney-client privilege with former defense counsel as well as former defense counsel’s other ethical or legal obligations, and not seek to abrogate such privileges or obligations without an unambiguous legal basis, or court order.

(b) If a prosecutor observes, at any stage of a criminal proceeding, defense counsel conduct or omission that might reasonably constitute ineffective assistance of counsel, the prosecutor should take reasonable steps to preserve the defendant’s right to effective assistance as well as the public’s interest in obtaining a valid conviction, while not intruding on a defendant’s constitutional right to counsel. During an ongoing defense representation, the prosecutor should not express concerns regarding possible ineffective assistance on the public record without an unambiguous legal basis or court order, and should not communicate any such concerns directly to the defendant.

Standard 3-8.5 Collateral Attacks on Conviction 

If required to respond to a collateral attack on a conviction, the prosecutor should consider all lawful responses, including applicable procedural or other defenses. The prosecutor need not, however, invoke every possible defense to a collateral attack, and should consider potential negotiated dispositions or other remedies, if the prosecutor and the prosecutor’s office reasonably conclude that the interests of justice are thereby served.

sourced https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

Rule 3-110 Failing to Act Competently

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

Discussion:

The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985) 38 Cal.3d 337, 342 [211 Cal.Rptr. 525]; Palomo v. State Bar (1984) 36 Cal.3d 785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black v. State Bar (1972) 7 Cal.3d 676, 692 [103 Cal.Rptr. 288; 499 P.2d 968]; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-858 [100 Cal.Rptr. 713; 494 P.2d 1257]; Moore v. State Bar (1964) 62 Cal.2d 74, 81 [41 Cal.Rptr. 161; 396 P.2d 577].)

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances. (Amended by order of Supreme Court, operative September 14, 1992.) source

Rule 5-110 Special Responsibilities of a Prosecutor

Rule 5-110 Special Responsibilities of a Prosecutor

Rules of Professional Conduct

Rule 5-110 Special Responsibilities of a Prosecutor

(Rule approved by the Supreme Court, effective Nov. 2, 2017)

The prosecutor in a criminal case shall:

• (A) Not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause;
• (B) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
• (C) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal has approved the appearance of the accused in propria persona;
• (D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
• (E) Exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including 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 5-120.
• (F) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
  • (1) Promptly disclose that evidence to an appropriate court or authority, and
  • (2) If the conviction was obtained in the prosecutor’s jurisdiction,
    • (a) Promptly disclose that evidence to the defendant unless a court authorizes delay, and
    • (b) Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
• (G) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Discussion:

• [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, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. Rule 5-110 is intended to achieve those results. All lawyers in government service remain bound by rules 3-200 and 5-220.
• [2] Paragraph (C) does not forbid the lawful questioning of an uncharged suspect who has knowingly waived the right to counsel and the right to remain silent. Paragraph (C) also does not forbid prosecutors from seeking from an unrepresented accused a reasonable waiver of time for initial appearance or preliminary hearing as a means of facilitating the accused’s voluntary cooperation in an ongoing law enforcement investigation.
• [3] The disclosure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S. Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (D) does not require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (D) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.
• [4] The exception in paragraph (D) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
• [5] Paragraph (E) supplements rule 5-120, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. Paragraph (E) is not intended to restrict the statements which a prosecutor may make which comply with rule 5-120(B) or 5-120(C).
• [6] Prosecutors have a duty to supervise the work of subordinate lawyers and nonlawyer employees or agents. (See rule 3-110, Discussion.) Ordinarily, the reasonable care standard of paragraph (E) will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.
• [7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (F) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (F) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court authorized delay, to the defendant. Disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. (See rule 2-100.)
• [8] Under paragraph (G), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Depending upon the circumstances, steps to remedy the conviction could include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.
• [9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (F) and (G), though subsequently determined to have been erroneous, does not constitute a violation of rule 5-110. (Amended by order of Supreme Court, operative Nov. 2, 2017.)

https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Previous-Rules/Rule-5-110

Five Ethics Rules Every Prosecutor Should Know

1. In addition to a prosecutor’s constitutional and statutory duties to disclose evidence, a prosecutor must, after making a reasonably diligent inquiry, timely disclose to the defense all evidence all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense. See North Carolina Rules of Professional Conduct, Rule 3.8(d), Special Responsibilities of a Prosecutor.

How does this rule differ from a prosecutor’s constitutional obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419 (1995), to learn of and disclose to the defendant materially favorable evidence? The ethical requirement is broader. That is because, unlike a prosecutor’s due process obligation, the ethics rule does not include a materiality requirement. North Carolina State Bar v. Brewer, 05 DHC 37 Reprimand at 26 n.9 (April 4, 2008) (citing Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 714 (1987) (noting that to fulfill ethical obligations under modern ethics codes “the prosecutor must disclose all exculpatory evidence . . . whether or not the evidence presented or omitted is important enough, in the context of all of the evidence presented at trial, to warrant a reversal of the conviction”; concluding that “[a]n ethical violation can, and often will, be present even when due process is not violated.”).

Rule 3.8(d) also requires a prosecutor, in connection with sentencing, to disclose to the defendant and the court “all unprivileged mitigating information known to the prosecutor,” unless disclosure is barred by a protective order.

And a prosecutor’s disclosure duties do not end with a conviction. When a prosecutor knows of new, credible information that creates a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, Rule 3.8(g) requires the prosecutor to disclose that information to the defendant or the defendant’s counsel and the North Carolina Office of Indigent Defense Services (or the federal public defender if a federal conviction).

2. A prosecutor may not prosecute a charge that the prosecutor knows is not supported by probable cause. See North Carolina Rules of Professional Conduct, Rule 3.8(a), Special Responsibilities of a Prosecutor. Thus, if a trial court enters an order suppressing evidence that bars the prosecutor from establishing probable cause that a crime occurred, the only proper course of action is for the prosecutor to dismiss the charge. Likewise, a prosecutor may not seek the filing of charges that are precluded by established law. See North Carolina State Bar v. Paul, 12 DHC 33 (October 17, 2012) (suspending assistant district attorney from the practice of law for one year for instructing law enforcement to seek warrants for charges that she should have known were precluded by established law). The State Bar cautioned in Paul: “It is imperative to the proper administration of justice that prosecutors maintain objectivity and exercise their powers cautiously. Even the best of intentions is insufficient to justify causing a person to be arrested on charges unsupported by law.” Id.

3. A prosecutor may not offer special treatment to a person charged with a crime in exchange for a charitable contribution. While a prosecutor may engage in plea negotiations with a defendant, including negotiations that require a defendant to pay statutorily-authorized restitution, a prosecutor may not reduce or dismiss charges or seek prayers for judgment continued (PJCs) in exchange for a charitable contribution. See RPC 204, Prosecutor’s Offer of Special Treatment to Defendants Who Make Charitable Contributions (July 21, 1995) (ruling that it is prejudicial to the administration of justice for a prosecutor to offer special treatment to individuals charged with traffic offenses or minor crimes in exchange for a direct charitable contribution to the local school system). The State Bar has explained that “[t]he offer of special treatment from a prosecutor to individuals charged with traffic violations or minor criminal offenses in exchange for direct donations to even the most worthy charity implies that justice can be purchased.” Id. This type of conduct is prejudicial to the administration of justice and contravenes a prosecutor’s duty to seek justice, not merely to convict. Id.

4. A prosecutor may not intentionally fail to inform the court of prior convictions that affect a defendant’s sentence. See 2003 Formal Ethics Opinion 5, Participating in Misrepresentation of Prior Record Level in Sentencing Proceeding. To so misinform the court would violate a prosecutor’s duty under Rule 3.3 of candor toward the tribunal. Moreover, a prosecutor may not under-report a defendant’s criminal history even with the permission of the court. 2003 Formal Ethics Opinion 5 (explaining that a prosecutor may not collude with a judge to avoid the requirements of the Structured Sentencing Act; such conduct violates Rule 8.4 as it involves dishonesty and misrepresentation, is prejudicial to the administration of justice, and knowingly assists a judge in violating the rules of judicial conduct).

5. A prosecutor should not publicly comment before trial on the possibility that the defendant will plead guilty, the results of any examinations or tests, the contents of any statement given by the defendant, or the character, credibility, reputation, or criminal record of the defendant or a witness. And, while a prosecutor may publicly state that a named defendant has been charged with a crime, the prosecutor should include a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Rule 3.6 prohibits an attorney, including a prosecutor, from making an extrajudicial statement that the attorney knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. The commentary to the rule recognizes that, of all such proceedings, criminal jury trials are the most sensitive to extrajudicial speech. Rule 3.6(a) sets forth a safe harbor for extrajudicial speech, permitting prosecutors to state the following:

• (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
• (2) the information contained in a public record;
• (3) that an investigation of a matter is in progress;
• (4) the scheduling or result of any step in litigation;
• (5) a request for assistance in obtaining evidence and information necessary thereto;
• (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;
• (7) the identity, residence, occupation and family status of the accused;
• (8) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
• (9) the fact, time and place of arrest; and
• (10) the identity of investigating and arresting officers or agencies and the length of the investigation.

The commentary to Rule 3.6 lists “certain subjects that are more likely than not to have a material prejudicial effect on a proceeding,” particularly when they refer to a criminal matter. These subjects include commentary relating to:

• • (1) the character, credibility, reputation or criminal record of a suspect or witness in a criminal investigation, the identity of a witness, or the expected testimony of a witness;
  • (2) the possibility of a guilty plea or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;

• (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
• (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; and
• (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

The commentary notes that a prosecutor may state the fact that a defendant has been charged with a crime, but notes that such a statement is likely to have a material prejudicial effect unless it is accompanied by a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.source

7A-66. Removal of district attorneys.

The Prosecutor’s Duty to Truth

CACI No. 425. “Gross Negligence” Explained
Judicial Council of California Civil Jury Instructions (2023 edition)

Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009

The Prosecutor’s Duty t s Duty to Truth

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

An attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”5

Do persecutors need to be honest?

Absolutely

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well

• 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery v. State Bar, 62 Cal.2d 194, 196 (1964);
• Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969);
• Coulello v. State of California, 45 Cal.2d 57 (1955);
• Hallinan v. State Bar of California, 33 Cal.2d 246 (1948).Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel.
• 4 Cal. Rules Prof. Conduct, Rule 3-200; Cal. Bus. & Prof. Code § 6068(c).The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, burden, delay or violate legal rights.
• 5 Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

you can learn all about being truthful and candid as an attorney here The Lying Client & Ethics Team you can read all the Supreme Court Rulings that clearly demonstrate, on a deeper level than this short article snippet, the requirements and duties of all attorneys even the prosecutor.

Malicious prosecution is a serious problems it affects many DA’s not All DA’s in several District Attorney’s offices that are more focused on how they appear than solving crimes. Learn more about Malicious prosecution here

Often it is this behavior that causes many in the prosecutors office to leave for the defense side. Dishonesty is a problem and should never be tolerated. Misrepresentation of the truth whether for your client or as a prosecutor is a definite NO NO.

or visit the cited source https://static1.squarespace.com/static/54beb2e8e4b052059c7ec632/t/551b3a45e4b0f74d74c389ac/1427847749781/5+The+Lying+Client+and+Ethics+Team+5.pdf

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

• Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

• California – California Tort Claims Act – California Tort Claim Form Here or here from us

• Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

• 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

new-supreme-court-ruling-makes-it-easier-to-sue-police/

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

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To Learn More…. Read MORE Below and click the links Below 

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Abuse & Neglect – The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s  for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below
]]> https://goodshepherdmedia.net/vindictive-and-selective-prosecution/ Sat, 01 Feb 2025 19:09:42 +0000 https://goodshepherdmedia.net/?p=1831

VINDICTIVE AND SELECTIVE PROSECUTION

WHAT IS VINDICTIVE PROSECUTION?

Vindictive prosecution is when a prosecutor violates a defendant’s due process rights and if they are using their decision to prosecute the defendant for purposes of retaliation.

The following instances constitute vindictiveness:

• Where the prosecutor charges the defendant with a more serious offense after the defendant appeals the conviction of the lesser offense
• Where the prosecutor charges the defendant with an offense although the defendant has not violated the law.

The following represent instances that DO NOT constitute vindictiveness:

• Adding a charge after the defendant withdraws from a plea bargain agreement
• Indicting the defendant on a more serious charge after the defendant rejected a plea agreement
• Indicting the defendant on a new charge after a mistrial occurred
• Indicting the defendant on a more serious charge after discovering that there was an error in the original information or indictment.

PRESUMPTION OF VINDICTIVENESS

If the presumption of vindictiveness arises, the presumption may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.

WHAT IS SELECTIVE PROSECUTION?

Selective prosecution is when the prosecutor bases her decision of whether to prosecute on the basis of race, gender, or ethnicity. If they do this then the prosecutor may be guilty of selective prosecution.

A claim of selective prosecution must be raised in a timely manner before the trial has commenced otherwise the claim may be regarded as untimely and waived. In order for the defendant to prevail on a selective prosecution claim they must overcome the strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards.

The defendant must produce evidence that shows:

• The prosecutor engaged in selective prosecution
• The selective prosecution had a discriminatory effect upon the defendant
• The selective prosecution was pursued with discriminatory intent.

If you need help with this subject contact the legal team of Underwood & Associates with the link below https://www.yourcriminaldefenseattorney.com/blog/2020/october/vindictive-and-selective-prosecution/

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

 

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

 

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

 

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

 

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Read MORE Below – click the links

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We also have the First Amendment Encyclopedia  very comprehensive and encompassing

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence

We also have the The Incitement to Imminent Lawless Action Test

We also have the True Threats Test – Virginia v. Black is most comprehensive Supreme Court definition

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st

We also have the Obscenity and Pornography ; 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test

We also have the Gravity of the Evil Test

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment lots of SCOTUS Rulings 

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ lots of SCOTUS Rulings 

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts lots of SCOTUS Rulings 

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9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof – click here to learn requirements

the CODE ABOVE PROTECTS all US CITIZENS

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the code BELOW PROTECTS ALL CALIFORNIA RESIDENTS

California Civil Code Section 52.1 Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights

https://goodshepherdmedia.net/california-civil-code-section-52-1/

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Recoverable Damages Under 42 U.S.C. Section 1983 LEARN MORE

New Supreme Court Ruling makes it easier to sue police

42 U.S. Code § 1983 – Civil action for deprivation of rights

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rights

Suing for Misconduct – Know More of Your Rights

Police Misconduct in California – How to Bring a Lawsuit

Recoverable Damages Under 42 U.S.C. Section 1983

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

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 Police Discretion

The police violated my rights

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

How to File a complaint of Police Misconduct?

Suing for Misconduct – Know More of Your Rights

New Supreme Court Ruling makes it easier to sue police

Prosecutorial Misconduct, What is it?

Frivolous, Meritless or Malicious Prosecution

Malicious Prosecution / Prosecutorial Misconduct

Prosecutorial Misconduct

 Vindictive Prosecution – Georgetown University

 VINDICTIVE AND SELECTIVE PROSECUTION

 Misconduct by Judges & Prosecutor

CALIFORNIA ATTORNEY MISCONDUCT LAW

Equality Act 2010 – Discrimination and mental health

Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008

Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

118.1 PC – Police Officers Filing False Reports

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]]> https://goodshepherdmedia.net/california-attorney-misconduct-law/ Sat, 04 Nov 2023 07:43:04 +0000 https://goodshepherdmedia.net/?p=1910

California Attorney Misconduct Law

California Attorney Misconduct and Malpractice: Laws, Rules, Ethics, and Moral Turpitude

Many people aren’t aware that the California Supreme Court is responsible for the conduct – and misconduct – of all the lawyers in California.

“The California Supreme Court has the exclusive power to regulate attorney admission to practice law in California and has inherent powers to discipline and and disbar members of the California Bar. The Supreme Court has delegated to the State Bar the power to act on its behalf in admission, disciplinary, and other matters, subject to the Supreme Court’s review. However, the Supreme Court retains its power to control any disciplinary proceeding at any step and its judicial authority to disbar or suspend attorneys.”

California Business and Professions Code § 6106

 

§ 6106

California Business and Professions Code 6106 – The commission of any act involving moral turpitude, dishonesty or …

The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.

If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor.

Terms Used In California Business and Professions Code 6106

• Conviction: A judgement of guilt against a criminal defendant.
• Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.

 

Click here for the State Bar of California webpage about making a complaint against an attorney. Click here for the State Bar attorney ethics information webpage.

The State Bar also provides the public an exhaustive, 456-page directory of decisional law and other references addressing virtually every type of unethical attorney conduct. The directory is called the California Compendium on Professional Responsibility [pdf]. To download the Compendium, click here [pdf]. For the State Bar Compendium webpage, click here. SFCR often uses the compendium as a resource in reporting on allegations of attorney misconduct. Other references we rely on are described in this post from 2011. Click here.This page provides news you can use about California laws that apply to attorneys in the common family court situations we report on. If you have a news tip about an unethical family law attorney, please contact us using our Contact Family Court News page, or click here to send us an email. Before contacting us with a news tip about attorney misconduct, please review the information below.

Attorney Rules of Professional Conduct, State Ethics Laws

When attorneys appear in court, under California law they are required to tell the complete truth whether or not they are under oath, according to the State Bar. Under California law, telling only part of the truth is considered the same as telling a lie, and withholding or concealing relevant information during a court hearing is the same as telling a lie.

A“misleading silence” is not distinguishable from a false statement, according to the State Bar, and this principle dates back to at least 1929. All these forms of deception are considered fraud upon the court, or fraud on the court. “False statement of fact,” “explicit false statement” or “affirmative misrepresentation” are the legal, technical terms for what the general public refers to as a lie.

When attorneys file papers in court, under California law they are required to tell the complete truth whether or not the paperwork is filed under penalty of perjury. Under California law, telling only part of the truth in any court filing by an attorney is the same as telling a lie, and withholding, concealing, or omitting relevant information in court filings is the same as telling a lie. And is considered fraud on the court, according to the State Bar.

As “officers of the court,” lawyers must disclose in court filings and in argument before a judge the facts, law and other authorities harmful or adverse to their position, in addition to the facts, law and authority supporting their position. The failure to disclose adverse facts and authority is unlawful, unethical, and considered sanctionable misconduct, according to the State Bar.

As members of the State Bar and officers of the court, attorneys are required to be honest at all times, even when off-duty and not acting as a lawyer. Dishonesty, whether or not committed while acting as an attorney, is considered an act of moral turpitude and is prohibited by Business and Professions Code § 6106, according to the State Bar.

It is illegal for a lawyer to mislead or make misrepresentations to an opposing attorney or party, including a self-represented litigant. Making offensive references or descriptions about an opposing party or attorney also is unlawful, according to the State Bar. Business and Professions Code § 6128 criminalizes deceit by an attorney intended to deceive a judge or any party.

another case to learn from is:

Sturr v. State Bar , 52 Cal.2d 125

This is a proceeding to review the recommendation of the Board of Governors of The State Bar of California that petitioner be suspended from the practice of law for a period of five years. The Board of Governors found that petitioner (1) violated his oath and duties as an attorney and counselor at law, (2) committed acts involving moral turpitude and dishonesty within the meaning of section 6106 of the Business and Professions Code, fn. 1 and (3) violated rules [52 Cal.2d 127] 9 and 12 of the Rules of Professional Conduct of The State Bar. fn. 2

Questions: First. Did petitioner violate (1) his oath and duties as an attorney and counselor at law, (2) section 6106 of the Business and Professions Code, and (3) rules 9 and 12 of the Rules of Professional Conduct of The State Bar?

Yes. These rules are here applicable:

[1] 1. In a disciplinary proceeding against an attorney, findings of fact by local administrative committees and the Board of Bar Governors are not binding on the Supreme Court, which will weigh and pass upon the sufficiency of the evidence to sustain the findings of the board.

[2] 2. The burden is upon the petitioner seeking a review of the Board of Bar Governors’ recommendation to show that its findings are not supported by the evidence or that its recommendation is erroneous or unlawful. (Tonini v. State Bar, 46 Cal.2d 491, 492 [1], [2] [297 P.2d 1]; Clark v. State Bar, 39 Cal.2d 161, 165 [1], [2] [246 P.2d 1].)

[3] Applying the foregoing rules, the record in the instant proceeding discloses that petitioner was admitted to the practice of law in California on June 12, 1951, and is and at all times herein mentioned was a member of The State Bar.

Moral Turpitude: Deceit, Dishonesty, Half-Truths 

California Business and Professions Code § 6128

Under California law, most forms of deceit and dishonesty by an attorney are considered acts of moral turpitude, according to the State Bar.

Under Business & Professions Code § 6106, the commission of any act of moral turpitude constitutes cause for disbarment or suspension from the practice of law. Click here to view this code section.

Moral turpitude is defined by decisions of the California Supreme Court, decisions of the State Bar Court, and other authority.

There are more than 100 types of lawyer misconduct that are considered acts of moral turpitude, according to the State Bar. Click here for a State Bar list of attorney actions that constitute moral turpitude.

An instructive summary of what moral turpitude includes is provided by the State Bar Court decision, In the Matter of Maloney and Virsik:

“[The attorneys] committed acts of moral turpitude in wilful violation of section 6106 by knowingly making repeated misrepresentations to the Superior Court. It is well established that acts of moral turpitude include an attorney’s false or misleading statements to a court or tribunal…The actual intent to deceive is not necessary…Acts of moral turpitude include concealment as well as affirmative misrepresentations…

[N]o distinction can be drawn among concealment, half-truth, and false statement of fact…Also, it is not necessary that [the attorneys] actually succeeded in perpetrating a fraud on the court…These [court] pleadings were permeated with half-truths, omissions, and outright misstatements of fact and law. The Supreme Court has denounced such misleading conduct and has not hesitated to impose discipline in such cases.”

Click here to view this portion of the decision. Click here to view the complete Maloney and Virsik decision. Other moral turpitude references and authorities are provided at the bottom of this post.

Under state law, it is mandatory that a judge take action when an attorney commits misconduct. A judge’s duty to take corrective action is not discretionary. Canon 3D(2) of the Code of Judicial Ethics – the ethical rules for judges – requires all judges to take appropriate corrective action when a lawyer violates professional standards. Click here to view Canon 3D(2).Under its inherent power, the California Supreme Court has the authority to discipline attorneys for misconduct not covered by statutes, the Rules of Professional Conduct, or other authority. Click here.

Attorney Ethics Laws and Authorities in California

Whether they are under oath or not, attorneys are required by state law to tell the truth in court:

• Mosesian v. State Bar (1972) 8 Cal.3d 60, 66. Click here.
• In the Matter of Maloney and Virsik (2000) 4 Cal. State Bar Ct. Rptr. 774. Click here.
• In the Matter of Chestnut (2000) 4 Cal. State Bar Ct. Rptr. 166, 174. Click here.
• Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group) ¶ 8:278-279. Click here.
• Witkin California Procedure 5th Edition, § 495. Click here.
• Business & Professions Code § 6068(d). Click here.

For a one-page list of similar and related authorities from the State Bar California Compendium on Professional Responsibility, click here.

A half-truth is identical to a lie, according to state law and attorney ethics standards:

• In the Matter of Chestnut (2000) 4 Cal. State Bar Ct. Rptr. 166, 174. Click here.
• Grove v. State Bar (1965) 63 Cal.2d 312, 315. Click here.
• Franklin v. State Bar (1986) 41 Cal.3d 700, 709. Click here.
• In the Matter of Maloney and Virsik (2000) 4 Cal. State Bar Ct. Rptr. 774. Click here.
• Cal. Compendium on Prof. Responsibility, 2013, p. 343.
• Business & Professions Code § 6068(d). Click here.

For a one-page list of similar and related authorities from the State Bar California Compendium on Professional Responsibility, click here.

Withholding or concealing material facts or information from a judge during a court hearing or in papers filed with the court is the same as telling a lie, and constitutes fraud upon the court:

• Sullins v. State Bar (1975) 15 Cal.3d 609. Click here.
• In the Matter of Chestnut (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 166, 174. Click here.
• Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162. Click here.
• Grove v. State Bar (1965) 63 Cal.2d 312, 315. Click here.
• Davidson v. State Bar (1976) 17 Cal.3d 570, 573. Click here.
• In the Matter of Downey (2009) 5 Cal. State Bar Ct. Rptr. 151. Click here.
• In the Matter of Maloney and Virsik (2000) 4 Cal. State Bar Ct. Rptr. 774. Click here.
• In re Lincoln (1929) 102 Cal.App. 733, 741. Click here.
• Cal. Compendium on Prof. Responsibility, 2013, pp. 58, 343, 425, 426.
• Business & Professions Code § 6068(d). Click here.

For a one-page list of similar and related authorities from the State Bar California Compendium on Professional Responsibility, click here.

Even where the attorney did not intend to deceive the court, and even where no harm results from an attorney deceiving a judge at a court hearing or in papers filed in court, it is unlawful for an attorney to deceive a court:

• In the Matter of Chestnut (2000) 4 Cal. State Bar Ct. Rptr. 166, 174. Click here.
• Codiga v. State Bar (1978) 20 Cal.2d 788, 709. Click here.
• Giovanazzi v. State Bar (1980) 28 Cal.3d 465. Click here.
• In the Matter of Maloney and Virsik (2000) 4 Cal. State Bar Ct. Rptr. 774. Click here.
• Business & Professions Code § 6068(d). Click here.
• Cal. Compendium on Prof. Responsibility, 2013, pp. 420, 422, 425.

For a one-page list of similar and related authorities from the State Bar California Compendium on Professional Responsibility, click here.

Even where an attorney unintentionally misleads a court, it is still an unlawful misrepresentation, and the attorney must immediately inform the court of the error and request that it set aside any orders based on the misrepresentation:

• Datig v. Dove Books Inc., 87 Cal. Rptr. 2d 719. Click here.
• Drociak v. State Bar (1991) 52 Cal.3d 1085. Click here.
• Cal. Compendium on Prof. Responsibility, 2013, pp. 59, 168, 197, 198, 203, 422, 425, 426.

For a one-page list of similar and related authorities from the State Bar California Compendium on Professional Responsibility, click here.

Moral Turpitude Acts Catalog

There are more than 100 different actions an attorney can take that under state law are considered acts of moral turpitude. The State Bar of California publishes a list of attorney acts and actions that constitute moral turpitude. Click here to view the list.

Decisions of the California Supreme Court in attorney misconduct cases also provide examples of moral turpitude. Click here. The State Bar Compendium on Professional Responsibility also provides a list of over 20 case law decisions which contain definitions of moral turpitude. Click here. California Practice Guide: Professional Responsibility published by The Rutter Group includes a section with examples and analysis of moral turpitude. Click here.

According to many unrepresented family court litigants, opposing attorneys often withhold, and do not disclose to judges important, but negative information about their clients. Under California law, an attorney who conceals adverse and material facts is guilty of moral turpitude. Click here.

The State Bar moral turpitude list includes the following subjects:

• Advancing untrue facts prejudicial to the opposing party.
• Concealing material information.
• Conspiracy to obstruct justice.
• Duty not to mislead court.
• Acts of deception.
• Defamation.
• Dishonesty.
• Destruction of documents.
• Omission of material facts from documents.
• Encouraging litigation for a corrupt motive.
• Filing false documents.
• Filing false pleadings or statements.
• Fraud.
• Misrepresentation and concealment of adverse and material facts.
• Honesty required in the practice of law.
• Misleading the court.
• Misrepresentations to opposing counsel or pro per.
• Mistake of Law.
• Offensive or disrespectful acts.
• Misleading opposing counsel or pro per.
• Overreaching.
• Perjury.
• Practicing deceit.

cited 

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NeW RULES OF PROFESSIONAL CONDUCT
When it comes to recognizing legal misconduct, we think we "know it
when we see it": showing up to court unprepared, blowing a statute of
limitations, using offensive language in the courtroom, and similar
instances of incompetent and unprofessional behavior. But in terms of
legal ethics, the description of professional misconduct is much
broader. And beginning Nov. 1 of this year, California lawyers will
have an entirely new definition.
OLD RULE 1-120 VS. NEW RULE 8.4

California does not currently have a catch-all rule describing
professional misconduct. It does, however, in Rule 1-120, contain a
small portion of what will be included in a more expansive misconduct
rule in November.
Current California Rule 1-120, Assisting, Soliciting, or Inducing
Violations, is short and sweet: "A member shall not knowingly assist
in, solicit, or induce any violation of these rules or the State Bar
Act." The State Bar Act includes a body of codified rules in the
California Business and Professions Code.
New Rule 8.4 added a number of provisions to the rule on
professional misconduct. From dishonesty, to criminal behavior, to
reckless misrepresentation, its broad scope merits the attention of
California lawyers because it covers a wide range of unprofessional
behavior.
MISCONDUCT AS PROFESSIONAL MISBEHAVIOR

• Rule 8.4 paragraph
  (a) is similar to the current rule, stating it is professional misconduct for a lawyer to “violate these rules or the State Bar Act, knowingly assist, solicit, or induce another to do so, or do so through the acts of another.” But the rule goes on to list a number of other types of behavior that constitute legal misconduct, including acts that are both legal and illegal.
  Regarding dishonesty, Rule 8.4 paragraph
• (b) states that it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” (Emphasis added.)But the very next paragraph,
  
• (c), extends the language involving dishonesty to non criminal behavior, labeling behavior professional misconduct when it involves “dishonesty, fraud, deceit, or reckless or intentional misrepresentation.”
  Paragraph
• (d) adds an additional broad category to the misconduct list: conduct that is “prejudicial to the administration of justice.”Rule 8.4 paragraph says
•  (e) it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law.”Paragraph f adds the last described method of committing misconduct
• (f) for a lawyer to “knowingly assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law.”
  (f) states that for purposes of this rule, “judge” and “judicial officer” have the same meaning as in Rule 3.5(c), which contains a list of individuals, some not traditionally classified as judges or judicial officers. It may include
  • (i) administrative law judges;
  • (ii) neutral arbitrators;
  • (iii) State Bar Court judges;
  • (iv) members of an administrative body acting in an adjudicative capacity; and
  • (v) law clerks, research attorneys, or other court personnel who participate in the decision-making process, including referees, special masters, or other persons to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court.

CLARIFYING COMMENTS
Current California Rule 1-120 has no discussion section unlike other current California ethics rules, which include descriptive, clarifying text after the text of the rule. The new Rule 8.4 comment section, in contrast, has plenty to say about its new provisions. Comment 1 specifies when a lawyer can commit misconduct, stating that Rule 8.4 can be violated “when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.”

Comment 3 , regarding criminal acts, states that “a lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. (_See In re Kelley_ (1990) 52 Cal.3d 487 276 Cal.Rptr. 375 .)”

Comment 4 references California Business and Professions Code Section 6106, which in pertinent part, prohibits “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”

Comment 4 incorporates much of the language of Section 6106 but adds some additional text. It states, “A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.”

Comment 5 recognizes a Rule 8.4 exception for permissible undercover activity. It states, “Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.”

And finally, Comment 6 states that Rule 8.4 “does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.”
New Rule 8.4 is one of many examples of how significant some of the ethics rule changes will be on Nov. 1. Lawyers are well advised to become familiar with these rules now, in order to continue to maintain thriving legal practices, and handle cases both effectively, and ethically. source

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Moral Turpitude Defined and Applied – California Attorney Misconduct Legal Reference – Business & Professions Code § 6106 Commission of Any Act Involving Moral Turpitude, Dishonesty or Corruption – California Supreme Court Justice Leondra R. Kruger, Justice Mariano-Florentino Cuellar, Justice Goodwin H. Liu, Justice Carol A. Corrigan, Justice Ming W. Chin, Justice Kathryn M. Werdegar, Justice Tani G. Cantil-Sakauye California Business and Professions Code § 6100 Supreme Court Summary Disbarment

Application of Business & Professions Code § 6106. “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes cause for disbarment or suspension.” The common definition of an act of moral turpitude is one that is contrary to honesty and good morals. It is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Moral turpitude includes acts of dishonesty, including intentional misrepresentation or concealment of material facts.

Under Business & Professions Code § 6100, the California Supreme Court retains ultimate authority over lawyers in the state. “Nothing in the article limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.”

 

Court watchdogs and whistleblowers throughout California allege, and have documented that attorneys routinely engage in acts of moral turpitude without accountability or consequences. For example, Sacramento Superior Court whistleblowers allege and have documented that local family law attorneys who also work as part-time judges in the same court operate a RICO racketeering enterprise involving collusion and kickbacks between judges and attorneys. Among other crimes, the criminal organization deprives the public of the federally protected right to honest government services, according to watchdogs. For more information, visit this URL: http://sacramentocountyfamilycourtnews.blogspot.com/p/temporary-judges.html For more about attorney misconduct and ethics: http://sacramentocountyfamilycourtnews.blogspot.com/p/the-oligarchy.html

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An Attorneys Ethical Duty of Honesty is All-Encompassing

This article discusses an attorney’s ethical duty of honesty not only in all aspects of the law practice but in all personal matters as well. It also presages the California Legislature’s imposition on attorneys the ethical duty to report to the State Bar another attorney’s act of dishonesty.

The Rules of Professional Conduct as well as the State Bar Act are replete with the ethical imperative for attorneys to be honest. The rules include 1.2.1, 3.3, 3.4, 4.1, 7.1 through 7.5 and 8.4; and further implicating the duty of honesty are Business and Professions Code sections 6068 (d), 6106, and 6128. The enforcement tools available to and used by the State Bar include disbarment, suspension, and public reprovals, all of which are a professional death sentence. In a word, the State Bar is empowered to impose the most serious of professional sanctions on counsel for failure to abide by the many rules requiring attorney honesty.

This article will focus on the ethical duty of honesty imposed on attorneys in their handling of negotiations, documenting transactions, and even in their private lives.

We all have been involved in negotiations often times in the context of a settlement conference or mediation. Must an attorney be honest in the course of such negotiations?

A recent opinion issued by the State Bar California Standing Committee on Professional Responsibility and Conduct (COPRAC) Formal Opinion number 2015 – 194 addresses the issue of “when an attorney is engaged in negotiations on behalf of the client, are there ethical limitations on the statements the attorney may make to third parties, including statements that may be considered ‘puffing’ or posturing?” COPRAC’s opinions are advisory only and not binding on the State Bar, although they are often cited by the California Supreme Court and the California State Bar Court in determining whether or not conduct is consistent with the State Bar Act or the Rules of Professional Conduct.

Opinion 2015 – 194 posits a settlement conference where two attorneys engage in exchanges obviously meant to advance their clients’ interests. The hypothetical involves an automobile accident in which plaintiff was injured and seeks compensation for lost income. Undoubtedly all counsel made representations regarding the strength of their respective cases in what any reasonable observer would conclude to be puffery and statements not reasonably to be relied upon. However, plaintiff’s counsel knowing that his client earned $50,000 per year represents that she earns $75,000 a year. Such counsel also knows that his client has found alternative employment and was able to work. Nonetheless, plaintiff’s counsel represents that she is unable to work. Defense counsel, not to be outdone, represents that his client if pushed too hard will file for bankruptcy, knowing that his client is ineligible for such a filing.

COPRAC concludes that both counsel engaged in unethical dishonesty. Such representations go well beyond mere puffery and violate what is now Rule of Professional Conduct 4.1 and Business and Professions Code section 6106, 6128 (a), and possibly 6068 (d) if a judicial officer was in charge of the settlement or mediation conference. The opinion reasons that where there is a false statement of material fact intended to induce reliance by a third-party ethically sanctionable dishonesty has been committed. The opinion also notes that the determination of ethically improper dishonesty does not require the same proof as does fraud, but that the elements overlap.

The drafting of a contract or other such document can, if accompanied with dishonesty, also trigger a State Bar disciplinary proceeding.

Bryant v. State Bar California (1942) 21 Cal. 2d 285 involves an attorney who was suspended for 18 months for having violated Business and Professions code section 6106. Bryant’s dishonesty included his having provided a usurious interest provision in a promissory note, but telling promissor’s counsel that Bryant would not commence an action to enforce the note. Bryant misrepresented his intention. The California Supreme Court in upholding the suspension advised that an attorney must have a blameless moral character; and that Bryant had engaged in moral turpitude; that is, he had committed an act “contrary to justice or honesty.”

The duty of honesty is all-encompassing applicable to an attorney’s private affairs.

Business and Professions Code section 6106 states that “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney, whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”

The COPRAC opinion cites as an example of a matter involving an attorney who commits a dishonest act in his capacity as a private citizen Segretti v. State Bar (1976) 15 Cal. 3rd 878. Mr. Segretti, in acts not committed while he was acting as a lawyer, performed so-called dirty tricks on behalf of Richard Nixon. For example, he prepared and distributed a letter on letterhead entitled Citizens for Muskie (then a candidate for the Democratic nomination for president) accusing Hubert Humphrey and Henry Jackson of sexual improprieties (they too were candidates). Needless to say, Mr. Segretti’s communication was false.

The California Legislature has before it the proposed addition of Business and Professions Code section 6090.8. It provides that “a licensee of the State Bar who knows that another licensee is engaged in professional misconduct that raises a substantial question as to that licensee’s honesty, trustworthiness, or fitness as an attorney in other respects, shall inform the State Bar.” There appears to be a high likelihood that the section will be enacted.

In conclusion, among the many reasons why honesty is in fact the best policy, the State Bar has a wide-ranging mandate to take disciplinary action against attorneys who act dishonestly.

source

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Under California´s New Ethics Rules, Are Lawyers Ever Off The Clock?

Until November 1, 2018, California was the lone hold out state that had not yet adopted some version of the ABA Model Rules.  And while we had our own statutes that addressed attorney misbehavior on personal time, we did not formally have our own version of the ABA Misconduct rule.

Now that California has adopted its own version of ABA rule 8.4, Misconduct, it is increasingly apparent that an attorney´s off-the-clock behavior can have on the clock consequences.

As many ethics gurus know, however, California attorneys were already subject to discipline for their behavior when they were not practicing law. Some of the relevant code sections are referenced in California rule 8.4.
Personal Time, Professional Rules

California lawyers have long been governed by California Business and Professions Code section 6106, which permits State Bar discipline for actions involving dishonesty (among other things) whether or not a licensed lawyer is practicing law.  New rule 8.4 adopts that language and rationale.

California rule 8.4 states in pertinent part that a lawyer shall not:

“(b)  commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;

(c)  engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation”

Rule 8.4 Comment [3] states, “A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. Comment [3] cites In re Kelley (1990) 52 Cal.3d 487, a case where a California lawyer was disciplined for picking up a second driving under the influence charge while on probation for the first one.

Rule 8.4 Comment [4] notes the possibility of discipline per Business and Professions Code section 6106 “for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.”

So with those guidelines, what exactly are the types of off-the-clock behavior that will land an attorney in ethical hot water?  Although the California rule 8.4 Comment section does not elaborate beyond the few references above, ABA Rule 8.4 Comment [2] is more instructive.  It recognizes, “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication.”

Regarding the differences between the types of offenses referenced, ABA rule 8.4 Comment [2] recognizes the traditional distinction made for offenses involving “moral turpitude.” It defines that concept as including “offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law.”

ABA rule 8.4 Comment [2] continues, recognizing that while a lawyer is responsible for abiding by all tenants of criminal law, “a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”  Regarding examples, the Comment notes, “Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”
Off Duty Conduct Unbecoming

Encouraging lawyers to hold themselves to the highest standards of care both personally and professionally is reflected in many different ethics codes and standards.  The preamble to the American Bar Association rules of professional conduct defines the responsibilities of a lawyer in section [1], “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

Yet most states, usually in connection with the adopted version of ABA rule 8.4, as well as case law, broaden a lawyer´s responsibilities to include maintaining high standards of conduct whether or not they are practicing law. This is particularly true in connection with behavior involving honesty and integrity.

Accordingly, lawyers may be subject to discipline for their actions during personal time.   From driving under the influence, to bar fighting, to inappropriate or offensive social media posting, off duty actions may have on duty consequences.

The takeaway? “None of your business,” is unlikely to be an acceptable response from a lawyer if the State Bar comes calling, asking questions about personal time—if there is such a thing in the life of a modern lawyer.  For attorneys who have the luxury of down time, be forewarned that well-earned R and R should be pleasurable, but also ethical. source

 

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• Prosecutorial Misconduct, What is it?
• Frivolous, Meritless or Malicious Prosecution
• Malicious Prosecution / Prosecutorial Misconduct
• Prosecutorial Misconduct
•  Vindictive Prosecution – Georgetown University
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•  Misconduct by Judges & Prosecutor
• CALIFORNIA ATTORNEY MISCONDUCT LAW
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• Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008
• Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing
• Right to Truth – Victims’ Bill of Rights – Prop 8 1982
• 118.1 PC – Police Officers Filing False Reports

 

 

]]> https://goodshepherdmedia.net/what-is-a-tort/ Fri, 03 Nov 2023 11:47:14 +0000 https://goodshepherdmedia.net/?p=11401 What is a Tort?

 

EVERYTHING YOU WILL NEED TO KNOW ABOUT THE FEDERAL TORT CLAIMS ACT

Imagine you get hurt because a federal employee did something wrong, but you don’t know what you can do about it. They are employed by the government, so who do you even report to?

The Federal Tort Claims Act was passed in 1946 to allow the federal government to be sued in cases of wrongdoing. This means that federal employees are to be held responsible for any mistakes that result in injury to others.

Have you had to deal with this type of situation in the past? Are you currently recovering from the misdoings of a federal employee?

Keep reading to find out more about what you can do.

What is a Tort?

Simply put, a tort is a wrongful act that causes a claimant to suffer loss or harm in some way. It is a civil wrong and there are three types of torts that may cause this harm to other people. Each of them has distinct differences that help to tell them apart.

Intentional Tort

Intentional torts are when someone does something wrong to another person on purpose. Examples of this could be assault, false imprisonment, or fraud.

For the most part, this is when someone does something illegal and harmful with intent to harm.

Negligence Tort

Negligence torts occur when harm is inflicted upon another person due to failure to meet specific standards meant to keep everyone safe and happy.

These are typically due to carelessness and are actually the most common of the three types of torts.

Strict Liability Tort

Strict liability torts are a little different because they happen when responsibility for harm can be applied to someone or something without any evidence of it being their fault.

The harm has to be directly caused by the someone or something in order for the law to see the person as being the victim in these cases.

The Federal Tort Claims Act

Under the Federal Tort Claims Act, the government is self-insured and will recognize liability when a federal employee does something that results in injury to another person or their property.

If someone is injured or harmed in some way as a result of a federal employee’s actions, you may have the chance to file a claim against the government.

What Do You Need?

You have to be able to show that the federal employee was the one that harmed you or your property.

You also need to be able to prove that the employee was doing something within the realm of duties he or she is meant to be doing for the government when the harm happened.

Lastly, you will need to be able to demonstrate the employee acted wrongfully and this wrongdoing directly resulted in harm to you.

For instance, you may file a FTCA claim if you are a veteran being treated at a Veterans Administration and the doctor employed there misdiagnoses and, as a result, mistreats you.

Is This Like Any Other Lawsuit?

This type of tort claim is a little bit more challenging than a civil suit, because the FCTA is a really complex law.

It is always better to file the claim sooner rather than later in order to have the best chance of winning the case. A written claim must be filed within two years of your knowledge of the negligence or intent to harm.

Hiring an expert-level lawyer is going to be important at this stage. .source

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Understanding Tort Law

Tort law can be split into three categories: negligent torts, intentional torts, and strict liability torts.

• Negligent torts are harms done to people through the failure of another to exercise a certain level of care, usually defined as a reasonable standard of care. Accidents are a standard example of negligent torts.
• Intentional torts are harms that have been caused by the willful misconduct of another, such as assault, fraud, and theft.
• Strict liability torts, unlike negligence and intentional torts, are not concerned with the culpability of the person doing the harm. Instead, such cases focus on the act itself. If someone or some entity commits a certain act—for example, producing a defective product—that person or company is responsible for the damage done, regardless of the level of care exercised or their intentions.

Examples of Tort Law

A Liability Case

In February 2016, a self-driving car made by Google crashed into a bus in Mountain View, Calif. The car sensed a group of sandbags positioned around a storm drain and swerved into another lane to avoid them, slamming into the side of a public transit bus. This was the first reported case of a self-driving car causing an accident, not just being a part of one.

According to liability tort law, drivers can seek compensation from a manufacturer for a faulty part of a car, usually an airbag or a tire. However, this liability tort now extends to self-driving cars, and Google and others in the nascent self-driving vehicle business could be found liable for the damages.1

A Negligence Case

Amy Williams filed a negligence lawsuit against Quest Diagnostics and its subsidiary Athena Diagnostics for the wrongful death of her two-year-old son, Christian Millare.

In 2007, Athena Diagnostics misclassified a mutation in Millare’s gene. The plaintiff argued that the misclassification led the child’s doctors to use the wrong treatment for his symptoms. The mutation directly resulted in his seizure and death in 2008.

In 2018, 11 years after the child’s death, the South Carolina Supreme Court ruled that a genetic testing lab could be classified as a healthcare provider under state law.2

An Intentional Tort Case

An example of an intentional tort is the ruling between the website Gawker and pro wrestler Hulk Hogan on March 18, 2016.

Hogan was awarded $140 million in damages since it was deemed that Gawker intentionally invaded his privacy in order to obtain video evidence of a private act. source

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What to Know About Tort Laws in California

In California, those who believe that they have been harmed by another person, company or government agency may pursue civil litigation. A civil case may also be referred to as a tort case, and unlike a criminal proceeding, no one will go to jail after a ruling is made in the matter. Instead, the defendant will likely be ordered to provide compensation to the plaintiff to help that person recover any financial losses incurred because of the defendant’s negligent behavior.

California Law Recognizes Three Different Types of Torts

In California, a tort may be classified as an intentional tort, a negligent tort or a strict liability case. An intentional tort takes place when the defendant engages in an act that he or she knew was wrong. Let’s say that the defendant in a personal injury case saw you walking on the side of the road. Upon seeing you, that person decided to hit you with his or her car despite knowing that doing so would be a violation of his or her duty of care.

A negligent tort occurs when a person unintentionally engages in an act that would constitute negligence on his or her behalf. Let’s say that the driver of the car that hit you did so while driving too fast for road conditions. Although that person should have known that driving above the posted speed limit was risky, there was no actual intent to cause you harm.

In a strict liability case, it doesn’t matter what the defendant’s intentions were. As long as it can be shown that another party’s actions caused you to incur a financial loss, you will likely obtain a favorable outcome in court. Strict liability laws often apply in cases involving vicious animals or defective products.

What to Know About Reckless Misconduct Cases

If a person acts in a reckless manner, he or she may face additional penalties in a civil case. Reckless activity occurs when an individual engages in acts that have a wanton disregard for a person’s life. As a general rule, it is considered to be a cross between an intentional tort and a negligent tort. However, typically, reckless behavior is seen as more severe than negligent behavior.

It’s possible for a defendant to face a reckless misconduct charge even if he or she didn’t intend to cause a specific amount of property damage or a specific type of injury. For example, a person may have acted in a reckless manner by driving 65 miles per hour through a residential street. Despite that, it doesn’t mean that the defendant intended to run you over or drive a car through your house.

How Do You Prove Negligence Occurred?

To obtain a financial award in any type of civil case, you’ll need to prove that the defendant acted in a negligent manner. To do this, you will first need to show that the defendant violated his or her duty of care in allowing your injuries to happen.

In a car accident case, you may be able to establish that by showing that he or she was driving while impaired or was operating an improperly maintained vehicle when the crash occurred. In a premises liability case, you might be able to use witness statements or security camera footage to establish that a hazard wasn’t dealt with properly.

After establishing that a duty of care was violated, you must show that the defendant’s actions were the proximate cause of your injuries. This is why it’s generally in your best interest to seek treatment immediately following any type of accident.

By doing so, you can establish a stronger link between a defendant’s actions and your injuries. Otherwise, it may be possible for that person to assert that a back injury occurred years ago at work or that your pain was caused by some other condition that you have failed to treat.

Finally, you’ll need to show that the defendant’s actions resulted in some sort of financial loss. For instance, if you went to the hospital after a car accident, you would likely be charged for services rendered. Presenting the bill that you received into evidence would generally be enough to satisfy this requirement.

What Types of Damages Might You Be Entitled To?

California tort laws allow you to collect a variety of damages based on the facts of your case. For instance, if you have to go to the hospital, you will likely be able to recover the cost of prior, current or future treatment. If you were forced to miss work, you’ll likely be able to recoup any wages that were lost, and in the event that you can’t go back to work, a settlement will likely include lost future earnings.

If you have to refurbish your home or car to make them easier to use, the defendant in your case may have to pay to make that happen. The defendant may also need to pay to repair or replace any items that were damaged or lost as a result of that person’s negligence.

Finally, you may be entitled to reimbursement for the cost of in-home care or any other costs that are somehow related to a defendant’s irresponsible behavior. In the event that your case goes to trial, it’s possible that the defendant may appeal an unfavorable jury verdict.

If that happens, interest will likely accumulate on the balance of any award that a jury says that you’re entitled to. In some cases, appeals take years to resolve, which means that the final amount that you’re paid may be significantly higher than what you were initially awarded.

Your personal injury attorney may be able to provide more information about the types of compensation that you may receive in your case. An attorney may also be able to talk more about the steps involved in calculating the size of your award.

How Long Do You Have to File a Lawsuit?

Under California tort laws, you have two years from the date of a negligent action to file a personal injury lawsuit. California law does generally toll the statute of limitations clock for a number of reasons. For instance, if you were under the age of 18 when you were hurt, you’ll typically have two years from your 18th birthday to take legal action.

If you are incapacitated, mentally deficient or incarcerated after an accident occurs, the statute of limitations tolls until your situation changes. For example, if you’re in a coma for three years after being hit in the head by the defendant in your case, you would have two years after emerging from it to file a lawsuit. Of course, this assumes that you have the mental capacity to do so on your own.

This clock may also toll if you aren’t immediately sure that you were hurt as the result of a defendant’s actions. It isn’t uncommon for symptoms of a concussion, internal bleed or other injuries to take days or weeks to present themselves. In such a scenario, you’ll be given two years from the date that a reasonable person would have figured out how they were injured.

It’s worth noting that you may have significantly less time to take legal action against a government agency. Under the California Tort Claims Act, you must generally provide up to six months advance notice before filing a lawsuit. A personal injury attorney may be able to provide more information about your rights as it relates to taking such a step.

If you are hurt for any reason through no fault of your own, it may be in your best interest to hire a personal injury attorney. source

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California Tort Claims Act – How to Sue The Government

The California Tort Claims Act (CTCA) is a law enacted by the California Legislature with the intent to protect the state government from liability in certain personal injury cases. The law states that, generally, “a public entity is not liable for an injury” caused by that public entity or any of its employees. This is known as “sovereign immunity.”

However, the law has numerous exceptions that provide injury victims with a limited opportunity to bring a claim and seek monetary damages.

In most California Tort Claim Act claims, proper notice of a claim must be filed within six months of the injury or accident.

The Act allows the government to be held liable in limited circumstances. These provisions include premises liability where the government had notice of the dangerous condition, or where the government is vicariously liable for the negligence of an employee.

If you are successful in your claim against the government, you can be awarded financial compensation for your injuries. Compensatory damages in a personal injury lawsuit can include:

• Medical bills,
• Loss of income,
• Property damage, and
• Pain & suffering.

1. What is the California Tort Claims Act?

If a government agency, employee, or the government itself is responsible for your injuries, there are very specific requirements you must follow in order to file a personal injury lawsuit against the government. Under the California Tort Claims Act, you are required to give notice to the government within a set period of time or you lose your opportunity to seek money damages from the party that injured you.

However, the law also carves out certain limited exceptions that allow the State of California to face liability. For those limited exceptions, a very strict filing claim procedure is in place which must be strictly followed for an injury victim to recover damages.

1.1 What is sovereign immunity?

Sovereign immunity is a legal concept created centuries ago in England, which protected the King from any lawsuit which caused damages to others. Over the many years since that time, the concept has been adopted by every state in various forms to protect public entities from lawsuits for injuries caused by them or their employees.¹

In most states, the sovereign immunity statutes carve out specific exceptions to the law by which a plaintiff can still sue the government or another public entity. These exceptions are usually governed by a strict procedure that must be followed.

1.2 What claims are covered under the California Tort Claims Act?

Under the California Tort Claims Act, all claims for civil liability or “money damages” are covered, meaning that cases that are covered may include:

• Car accidents;
• Bus accidents;
• Burn injuries;
• Slip and fall accidents;
• Medical negligence;
• Nuisance;
• Sports injuries at school;
• Breach of contract; and
• Intentional torts, like assault & battery.

Lawsuits against teachers and school districts in California generally proceed by way of the CTCA.

1.3 What types of claims are not permitted under the California Tort Claims Act?

The Act generally does not allow claims for almost any other reason, except those above. These include:

• Injuries caused by the failure to pass a regulation, ordinance, or law;
• Injuries caused by the California National Guard;
• Injuries caused by failure to enforce a specific law;
• An injury caused by an issuance or failure to issue any permit, license, certificate, or other governmental authorization;
• Any injury caused by a failure to inspect any property which the government itself does not own;
• Injuries caused by any misrepresentation; or
• Damages as a result of reporting identifying information of convicted drug offenders to local schools.

Moreover, punitive damages are generally not allowed in a claim against the government. These types of damages are rarely awarded in a personal injury claim, and may require a showing of recklessness, fraud, or intentional harm. However, these types of damages are specifically excluded from liability under the law.

Additionally, any claim which is not “for money or damages” cannot be filed under the California Tort Claims Act.

Example: Janet is a contractor who has agreed to build a shed for a customer by the end of next week. She goes through the paperwork for the necessary building permit and submits it but the permit is denied. Janet is unable to fulfill her contract, and is sued as a result. She cannot sue the government under the CTCA for denying her permit, even though that denial was the ultimate cause of her damages.

2. When can the government be held responsible for my injuries?

Under the Act, the government can be held legally responsible for personal injury damages in certain situations. These situations include:

• The negligent acts of employees,
• The negligent acts of independent contractors,
• Premises liability for dangerous conditions on government property, and
• When damages are caused by the public entities’ failure to carry out a duty imposed by law.

The entity responsible in a California Tort Claims Act claim is generally the government entity or agency responsible for the employee, property, or carrying out a duty. The CTCA applies to state, county, and local government agencies and departments, including city or municipality agencies.

2.1 When can the government be liable for acts of its employees?

A government entity or agency is responsible for any negligent acts committed by its employees, if:

• The employee was acting within the scope of his or her employment; or
• The employee was carrying out some government function.²

If a government employee is the cause of a person’s personal injury damages, the victim should file a claim under the California Tort Claims Act against the agency or entity that employs that negligent employee. The Act does not provide for a lawsuit against the employee personally but generally only against the employer.

2.2 When can the government be liable for the acts of independent contractors?

The government may be held responsible for the negligent acts of its independent contractors when:

• The independent contractor was acting within the scope of its assignment or agreed upon duties; or
• The independent contractor was carrying out a government function for which it had authority.

The same rules apply under the Act for independent contractors as they do for employees. Again, the independent contractor may not be sued individually under the California Tort Claims Act but instead the lawsuit must be against the government itself.

2.3 When can the government be liable for failure to carry out a legal duty?

If a law imposes a particular duty upon a government entity or agency, and that entity or agency fails to fulfill that legal duty, the government can be held liable for injuries caused as a result under the California Tort Claims Act.

Example: If a government agency is responsible for ensuring that roads are kept in a safe manner, and the agency negligently fails to correct a large pothole it has known about for months, a person injured by the unsafe road condition may be able to sue the agency for damages under the Act.

Note, however, that many government officials acting in their discretionary capacity are protected by qualified immunity.

2.4. Who is responsible for accidents that happen on government property?

When the government owns or controls the property, the government may be liable for injuries caused by any hazardous condition on the property. However, premises liability claims against public entities have a different standard.

In a premises liability claim against the government, the plaintiff has to show:

1. The property was in a dangerous condition at the time of the injury;
2. The injury was proximately caused by the dangerous condition;
3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and either:
   1. The danger was created by a negligent or wrongful act of a public employee, or
   2. The public entity had actual or constructive notice of the dangerous condition and enough time to correct or protect against the dangerous condition.³⁴

To establish notice, the dangerous condition may have existed for a period of time and was obvious enough that the government entity should have discovered the condition and its dangerous character.⁵

3. How do I file a claim under the California Tort Claims Act?

To file a claim against the State of California, a county government, or a municipal government agency, the injury victim must give notice of his or her claim.⁶ This may include filing a report or sending a letter which may suffice as notice, so long as it contains all of the necessary requirements. However, many agencies and municipalities have claim forms that individuals can fill out to provide notice of the claim.

An attorney at the Shouse Law Group can ensure you meet all of the filing requirements, including making sure you file your claim in within the appropriate time limit. Failure to properly file a claim or filing the claim too late could mean your claim will be denied.

3.1 What information does my claim have to include?

The person seeking to file a lawsuit against the government agency or entity must file a claim which includes the following information:

• The name and postal office address of the claimant.
• The post office address to which the person presenting the claim desires notices to be sent.
• The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
• A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
• The name or names of the public employee or employees causing the injury, damage, or loss, if known.
• The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. ⁷

Failure to include all of the necessary information can invalidate your claim. If a proper claim is not filed within the time period set forth by law, the claim may be denied.

3.2 What is a “limited case?”

If your claim exceeds $10,000, you may not be required to indicate the amount you seek in your claim, but you are required to indicate whether the claim is a “limited civil case.” A civil case is a “limited civil case” if the plaintiff is seeking less than $25,000, not including costs and reasonable attorney fees, and the plaintiff is not asking for any of the following:

• A permanent injunction: A court order which commands the government agency or entity to or prevents it from taking the complained of action or activity;
• An action which seeks a determination of title to real property;
• Enforcement of any order under the Family Code; or
• An action for declaratory relief: A case that asks the court to state and establish the rights and other legal obligations of the parties involved, but does not actually order enforcement.

It is important to discuss your case with an experienced attorney before filing a claim. Many injury victims under-value their case or do not take into account all their damages. Even minor injuries can require follow-up care or continuing medical treatment. Not asking for enough to fully compensate you for your injuries could leave you paying out of pocket for something that wasn’t your fault.

3.3 Do I have to file a lawsuit if I filed a claim?

If you file a proper notice of claim, you may not have to immediately file a lawsuit. By filing a claim, an injured victim leaves open the option of filing the later lawsuit. However, the party may not be required to follow through with the lawsuit if the government agency agrees to pay the claim.

Example: Carlos was injured as a result of a broken staircase while in a municipal building. Carlos and his attorney file a claim with all of the necessary information and within the time limit. Later, Carlos realizes that he does not want to go through with the lawsuit. He is not required to under the law, but he kept his options open by filing his claim.

4. What are the time limits for bringing a claim?

The act sets forth very strict guidelines for filing a claim against a government entity or agency. Failure to follow these strict guidelines may result in the dismissal of any late claim. This means that an otherwise proper lawsuit for which a plaintiff could receive damages may be invalidated because it was outside of the strict, and often short, time period in which to file.

Most personal injury claims have a limited time to file a claim. However, the statute of limitations, or time allowed to file a claim against government entities is generally shorter than claims against private parties.

A notice must be filed within six months for claims that concern:

• Personal injury,
• Wrongful death,
• Damage to personal property, or
• Damage to crops.

The notice must be filed within six months of the date of the injury. In very limited circumstances, the six-month period may not begin to run until the plaintiff first discovers (or should have discovered) the injury. For example, in a medical negligence case, the victim may not be aware of an accident or injury until weeks or months later. ⁸

Claims which relate to all other causes must be brought within one year of the injury. These actions would include, but are not limited to:

• Breach of contract actions;
• Damage to real property; or
• Declaratory judgment actions not subject to a six-month limitation.

It is critical that the claim is filed within the appropriate time limit to protect the lawsuit from being dismissed.

4.1 Can I file a late claim?

Late claims without a qualifying reason will generally be denied. However, a late claim may sometimes be accepted when the claimant files their claim along with an “application for late filing.” There are four valid reasons for being late in filing a claim:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Minority (claimant was a minor under the age of 18 during the entire six-month period);
3. Mental or physical incapacity; or
4. Death of a claimant.⁹

Filing a late claim is subject to further strict requirements, but with the help of an experienced personal injury attorney your chances of successfully filing your late claim may increase significantly.

5. What happens after I file my claim?

Once your claim is filed, the public agency generally has 45 days in which to respond or take action. This time is extended somewhat depending on if the claim is mailed and from where the claim is mailed.

There are 5 possible outcomes after a claim is filed:

1. The entity fails to respond within the appropriate time period. This means that the claim is deemed rejected.
2. The entity may approve the claim in whole or in part. The entity may offer a compromise to the claim, which may constitute a settlement of the whole case.
3. The entity may reject the claim.
4. The entity may state the claim does not have sufficient information. The claim can be amended within the time period set by law to fill in that missing information.
5. The entity may return the claim for being untimely.

6. What do I do if my claim is rejected?

If the claim is rejected, a claimant can file suit in state court against the government. To do so, a claimant files a petition with the Superior Court asking to be relieved from the claims requirement. ¹⁰

If the original claim was rejected in whole or in part by the government entity by some form of notice from that entity, the claimant has only six months to file the petition with the court.

If the original claim was rejected because the governmental entity failed to respond to the notice, the time in which to file the petition is two years from the date of rejection.

6.1 What if the court grants my petition?

If the court grants the petition to proceed without the claim requirement, the claimant must file his or her lawsuit within 30 days. Failure to file suit within this time period can result in the inability to ever file the suit again. ¹¹

6.2 What if the court denies my petition?

If the court denies the petition to proceed without the claim requirement, the order denying the petition may be appealed. Your California personal injury attorney can file the appeal on your behalf. If successful on appeal, you will be able to file your case against the government. source

Legal References

1. Legal Information Institute. Sovereign Immunity.
2. California Legislative Information. Cal. Gov. Code § 815.2. (“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”)
3. California Government Code section 835 — Liability of Public Entities.
4. California Civil Jury Instructions (CACI) 1100 — Dangerous Condition on Public Property.
5. California Government Code 835.2.
6. California Legislative Information. Article 1. General 910-913.2.
7. California Legislative Information. Cal. Gov. Code § 910.
8. California Legislative Information. Cal. Gov. Code § 911.2.
9. California Legislative Information. Cal. Gov. Code § 911.4.
10. California Legislative Information. Cal. Gov. Code § 946.6.
11. California Legislative Information. Cal. Gov. Code § 946.6(f).

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Government Tort Claims

A very short primer on practice and procedure

When is a tort claim required?

A strict statutory requirement exists in California requiring that a “government tort claim” be brought before suing a public entity for money or damages. Government tort claims are governed by Government Code section 810-996.6. The tort-claim requirement applies to all public entities – including, but not limited to, state, county, local government agencies or departments and government employees.

There are several exceptions and exemptions to the tort-claim requirement, but as a general rule you cannot sue the government for money or damages unless you have first filed a claim within the statutorily specified time period.

The public policy behind the Tort Claims Act is to provide the public entity with sufficient information to enable it to adequately investigate claims, to settle claims (if appropriate) without the expense of litigation, and to financially plan for lawsuits.

When is a tort claim not required?

Government Code section 905 contains a list of the “exemptions” from the Tort Claims Act. However, the exclusions enumerated in section 905 are not exclusive. Various other exemptions are also recognized by case law. For example, claims by minors (under the age of 18) related to sexual abuse they experience in their minority (Gov. Code, § 905, subd. (m)) are exempted from the tort-claim requirement.

Additionally, if a statute exists containing a different procedure for filing claims, then no claim under the Government Claims Act is required. For example, employment-discrimination claims against a public entity under the California Fair Employment and Housing Act (FEHA claims) are not subject to claim-filing requirements because FEHA has its own procedures that ensure adequate notice to the public entity.

What is a “public entity”?

Public entities include the state, county, local government agencies or departments, and government employees, including but not limited to public schools, public hospitals, public transportation, law enforcement, etc. (Gov. Code, § 900, et seq.)

Some public entities are obvious; if it is unclear whether defendant is an exempt public entity, your “mistake” as to its status will not exempt you from the filing deadlines. To determine if your defendant is a public entity, first check its website (look generally for language stating its relation with the state, insignia, tort claims forms, etc.) and also check the “Roster of Public Agencies” by calling the Secretary of State’s Special Filings department at (916) 653-3984.

You may also simply call/email the defendant to ask whether they are a public entity requiring a tort claim and confirm their response in writing. If the defendant misleads you as to its name, its status as a public entity, or regarding the need to file a claim, this may create an estoppel argument.

Timing requirements

Any claim against a public entity for personal injury, death or for damage to personal property must be presented to the public entity within six months of the “accrual of the cause of action.” (Gov. Code, § 911.2.) Your claim is deemed presented when it is mailed. (Gov. Code, § 915.2.)

Accrual of cause of action refers to the date on which the statute of limitations would begin to run if there were no claim requirement. Generally, this date will be the date of the injury. (Gov. Code, § 901.)

After presentation of the claim, the public entity has 45 days to either accept or reject the claim. If it does not act within the 45 days, then the claim is deemed rejected. After rejection of your claim, you have six months to file your complaint.

Completing the tort claim

If the public entity has a specific form they require for tort claims, you must use it. (Gov. Code, § 910.4) For example, LAUSD has a specific LAUSD tort-claim form that you can access by calling their district office and requesting.

If no form is available, you must submit a typed claim including: (1) the name and address of the claimant, (2) the date and place of the incident out of which the claim arose, (3) a general description of the damage sustained, (4) the names of any public employees involved, and (5) the dollar amount of the claim if it is less than $10,000. Claims over $10,000 should state that they “exceed the jurisdictional limits of the Court.” You are not required to include a dollar amount if your claim is for more than $10,000.

Tort-claim pleading requirement

Your complaint should contain a section titled “Compliance with Government Tort Claims Act” stating the date your tort claim was filed and the date of the rejection. A demurrer will quickly follow if you fail to include facts in your complaint showing compliance with the Tort Claims Act.

Late tort claims

Generally, failure to comply with the Tort Claims Act completely bars the claim against the public entity or its employees. If you are required to file a claim, and your claim is not exempted by statute or case law, you may still get around the filing requirement in certain limited circumstances. A few examples are as follows:

The public entity fails to file with Secretary of State: Public entities are required to file information with the Secretary of State and County Clerk which identifies them as being a “public entity.” (Gov. Code, § 53051.) A claimant may be excused from filing a claim if the entity fails to do so.

Estoppel: If the entity (or its employees) do anything to mislead, prevent or dissuade the claimant from filing her claim, the entity may be estopped from arguing that the claimant’s claim came in late. (See, e.g., John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.)

Prior payments by the public entity (paying for medical expenses after injury): If a public entity has previously made payments to the claimant without first notifying claimant of claims requirement, the claimant may be excused from the tort-claim requirement. This most often comes up in a situation where the entity has paid for medical care related to the injury sustained by the claimant and caused by the entity or its employees. (See, e.g., Maisel v. San Francisco State Univ. (1982) 134 Cal.App.3d 689.)

Request for relief from late filing: If your claim is late, meaning it was filed more than six months after accrual, but less than one year after accrual, you may still file your claim and seek relief from the late filing. The claimant has up to one year after accrual of the cause of action to apply in writing to the public entity for permission to file a late claim. The application must state the reason for the delay and be accompanied by a copy of the proposed claim. (Gov. Code, § 911.4.)

source

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Helpful articles involving Torts

How to File a complaint of Police or Government Misconduct?

$uing for Misconduct – Know More of Your Right$

California Attorney Misconduct Law – Suing your attorney

“Civility” Oath Rule Adopted by Supreme Court

Police Misconduct in California – How to Bring a Lawsuit

Section 1983 Lawsuit   How to Bring a Civil Rights Claim

Offsite Help 

• Civil Rights
• File Government Claim for Eligible Compensation site
• Claims Against the Government (Pamphlet)
• claim-damage-injury-or-death

You may need assistance obtaining police reports, incident reports, bodycam footage etc..

Retrieving Police Data, their police line recordings, and bodycam Footage SB1421 form & learn here

 

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Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

• Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

• California – California Tort Claims Act – California Tort Claim Form Here or here from us

• Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

]]> https://goodshepherdmedia.net/sen-bob-menendez-indicted-again-for-corruption-allegedly-had-cash-stuffed-in-coat-gold-bars/ Fri, 22 Sep 2023 18:52:58 +0000 https://goodshepherdmedia.net/?p=16073 Sen. Bob Menendez indicted again for corruption, allegedly had cash stuffed in coat, gold bars

A federal grand jury in New York has returned a sweeping indictment against United States Sen. Bob Menendez, D-N.J., chairman of the powerful Foreign Relations Committee, in connection with improper foreign relations and business dealings.

The investigation focused on a luxury car, gold bars and an apartment allegedly received by Menendez and his wife, Nadine Arslanian. His wife was also indicted.

The indictment charges Menendez, 69, and his wife with having a corrupt relationship with three New Jersey businessmen — Wael Hana, Jose Uribe and Fred Daides.

The indictment accuses Menendez and his wife of accepting hundreds of thousands of dollars of bribes in exchange for using the senator’s power and influence to seek to protect and enrich the businessman.

“Those bribes included cash, gold, payments toward a home mortgage, compensation for a low-or-no-show job, a luxury vehicle, and other things of value,” the indictment said.

This is the second time New Jersey’s senior senator has been charged with corruption. A 2015 indictment ended in a mistrial in 2018 after a jury failed to reach a verdict on all counts and a judge acquitted him on some charges.

The previous charges against Menendez centered on his relationship with Florida eye doctor Solomon Melgen, a close ally of the senator. Menendez allegedly accepted gifts from Melgen in exchange for using the power of his senate office to benefit the doctor’s financial and personal interests.

Menendez is facing reelection next year and will have to step down as the chairman of the powerful Senate Foreign Relations Committee. Rules for the Senate Democratic caucus say that any member who is charged with a felony must step aside from a leadership position. However, according to a person close to Menendez, the senator will not resign.

“For years, forces behind the scenes have repeatedly attempted to silence my voice and dig my political grave,” Menendez said in a statement about the indictment. “Since this investigation was leaked nearly a year ago, there has been an active smear campaign of anonymous sources and innuendos to create an air of impropriety where none exists.”

He continued, “I have been falsely accused before because I refused to back down to the powers that be and the people of New Jersey were able to see through the smoke and mirrors and recognize I was innocent.”

Danny Onorato, a lawyer representing Nadine Menendez, said in a statement to ABC News, “Mrs. Menendez denies any wrongdoing and will vigorously defend against these allegations in court.”

In June 2022, federal agents searched Menendez’s New Jersey home and found “fruits” of the pair’s “corrupt bribery agreement” with the three businessmen, according to the indictment. Investigators found over $480,000 in cash, some stuffed in envelopes and hidden in clothing, as well as $70,000 in Nadine Menendez’s safe deposit box.

Also found in the home were over $100,000 worth of gold bars, “provided by either Hana or Daibes,” according to the indictment.

Menendez allegedly gave sensitive U.S. government information “that secretly aided the Government of Egypt” and “improperly advised and pressured” a U.S. agricultural official to protect an exclusive contract for Hana to be the exclusive purveyor of halal meat to Egypt, according to the indictment.

Menendez also tried to disrupt a criminal investigation into a second businessman in the trucking industry that had been undertaken by the New Jersey attorney general, the indictment said.

The senator is also accused of recommending someone to the president to be the U.S. attorney in New Jersey who he thought he could influence. Philip Sellinger was ultimately confirmed to the post. He recused himself from the investigation and has not been accused of wrongdoing.

A spokesperson for the U.S. Attorney’s Office said, “U.S. Attorney Sellinger was recused from the Daibes matter and all activity by the office related to that matter was handled appropriately according to the principles of federal prosecution.”

“They wrote these charges as they wanted; the facts are not as presented,” Menendez said in his statement. “Prosecutors did that the last time and look what a trial demonstrates. People should remember that before accepting the prosecutor’s version.”

Menendez appears to be the first senator to ever be indicted on two unrelated criminal charges while in office, according to the Senate Historical Office.

“The FBI has made investigating public corruption a top priority since our founding — nothing has changed,” FBI Assistant Director in Charge James Smith said in a statement. “The alleged conduct in this conspiracy damages the public’s faith in our system of government and brings undue scorn to the honest and dedicated public servants who carry out their duties on a daily basis.”

Daibes, also named as a defendant, ultimately pleaded guilty last year in New Jersey to separate charges and is awaiting sentencing.

A spokesperson for Hana also rejected the claims in the indictment, saying, “We are still reviewing the charges but based upon our initial review, they have absolutely no merit. Mr. Hana is expected to voluntarily return to the U.S. from Egypt and appear in court on Wednesday.”

All five individuals are due in Manhattan federal court on Sept. 27. source

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Federal agents found more than $480,000 in cash ‘stuffed into envelopes and hidden in clothing’ in Sen. Bob Menendez’s home, indictment says

• Democratic Sen. Bob Menendez of New Jersey has been indicted on bribery charges.
• Federal agents found cash “stuffed into envelopes and hidden in clothing” in his home.
• This is the second time Menendez has been charged with bribery.

Federal agents found more than $480,000 in cash hidden in Democratic Sen. Bob Menendez’s home, according to the newly-unsealed indictment against the New Jersey senator.

Menendez is facing bribery charges for the second time in six years.

According to the indictment, federal agents executed search warrants on the New Jersey senator’s home in June 2022, where they found the “fruits” of the bribery agreement that Menendez and his wife, Nadine, had allegedly made with three New Jersey businessmen.

That included more than $480,000 in cash that was “stuffed into envelopes and hidden in clothing, closets, and a safe.”

The indictment alleges that the fingerprints of one of the businessmen were found on some of the envelopes, and that some of the envelopes were “found inside jackets” emblazoned with Menendez’s name.

US District Court for the Southern District of New York

In a defiant statement on the indictment, Menendez said that he’s the victim of a “smear campaign” and that prosecutors have “misrepresented the normal work of a Congressional office.”

“Those behind this campaign simply cannot accept that a first-generation Latino American from humble beginnings could rise to be a US senator,” said Menendez.

Menendez, the chairman of the Senate Foreign Relations Committee, has been accused by federal prosecutors of accepting bribes in return for secretly aiding the Egyptian government.

Specifically, the indictment alleges that “provided sensitive US government information and took other steps that secretly aided the Government of Egypt” in exchange for gifts that included gold bars.

Additionally, Menendez is accused of plotting to give IS EG Halal Certified, a New Jersey company, a monopoly on halal certification on US food exports to Egypt. Nadine Menendez was allegedly also offered a “low-or-no-show job” at the company by businessman Wael “Will” Hana, a long-time friend.

Menendez was previously put on trial for totally separate bribery charges back in 2017. The charges were later dropped, and Menendez went on to win re-election in 2018. source

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Sen. Robert Menendez Indicted: Stunning Details of Gold Bars, Cash and Egyptian Influence Peddling

Prosecutors allege the Foreign Relations Committee chairman accepted bribes including ‘cash, gold, payments toward a home mortgage, compensation for a low-or-no-show job [and] a luxury vehicle’

shiny, new Mercedes-Benz C-300 convertible.

Gold bars valued at more than $100,000.

Stacks of crisp one-hundred-dollar bills atop a jacket marked “Senator Menendez.”

Those are some of the extraordinary images punctuating the 39-page indictment unsealed Friday charging U.S. Senator Robert Menendez, D-N.J., and others with bribery.

Menendez, the chairman of the Senate Foreign Relations Committee, is accused – along with his wife, Nadine Menendez – of accepting hundreds of thousands of dollars in bribes–including “cash, gold, payments toward a home mortgage, compensation for a low-or-no-show job, a luxury vehicle, and other things of value,” in exchange for using his power and influence to benefit three businessmen and the Republic of Egypt between 2018 and 2022.

Among the allegations are that Menendez recommended that President Joe Biden nominate lawyer who Menendez believed he could influence in a matter related to one of the businessmen to be the U.S. Attorney for New Jersey. The indictment also alleges Menendez “provided sensitive U.S. Government information and took other steps that secretly aided the Government of Egypt” as part of the alleged bribery scheme.

In a statement Friday, Menendez said he had been “falsely accused.”

“To my supporters, friends and the community at large, I ask that you recall the other times the prosecutors got it wrong and that you reserve judgement,” he said. “I am confident that this matter will be successfully resolved once all of the facts are presented and my fellow New Jerseyans will see this for what it is.”

David Schertler, a lawyer for Nadine Menendez, said in a statement that she “denies any criminal conduct and will vigorously contest these charges in court.”

Among its most serious and stunning allegations, the indictment alleges that investigators found “over $480,000 in cash—much of it stuffed into envelopes and hidden in clothing, closets, and a safe” at the Menendez’s home.

The indictment includes two pictures showing mounds of cash stacked on top of jackets.

One jacket, embroidered with “Robert Menendez” on one lapel and the seal of the United States Senate on the other, is pictured with stacks of twenty- and fifty-dollar bills. Another jacket, embroidered with “Senator Menendez” shows a more disordered array of hundred-dollar bills and empty white envelopes.

During the same June 2022 search that uncovered that cash, investigators allegedly found furniture and a luxury vehicle allegedly paid for by the businessmen, “as well as over one hundred thousand dollars’ worth of gold bars in the home.”

The indictment depicts two gold bars, both stamped with “1 Kilo,” short for one kilogram.

In October 2021, the day after returning from a trip to Egypt, the indictment alleges Menendez “performed a web search for ‘how much is one kilo of gold worth.'”

Menendez has served as chairman of the Senate Foreign Relations Committee since 2021, and before that served as its top-ranking Democrat from 2018 to 2021.

In exchange for the alleged bribes, Menendez is accused of pressuring a U.S. Department of Agriculture official to protect a business monopoly granted by the Egyptian government on the certification of U.S. food exports to Egypt, and trying to disrupt a New Jersey criminal prosecution.

The indictment recounts a number of alleged interactions between Egyptian officials, Egyptian businessmen, and the Menendez’s.

In one such meeting, the indictment alleges that Nadine Menendez arranged a meeting between Sen. Robert Menendez and a senior Egyptian intelligence official at a Washington, D.C. hotel shortly before the official met with other senators. Two days later, the indictment alleges, one of the Egyptian businessmen purchased 22 one-ounce gold bars valued at $1,800 per ounce. Two of those gold bars were later found at the search of the Menendez’s home.

The indictment demands that the senator and his wife forfeit to the government all property “derived from proceeds traceable to the commission” of the alleged crimes, including their residence in Englewood Ciffs, N.J.; $486,461 in U.S. currency seized from their residence; $79,760 seized from a safe deposit box; two one-kilogram gold bars; 11 one-ounce gold bars and the Mercedes-Benz convertible.

Menendez has faced federal bribery allegations before. In 2015, he was indicted on charges including bribery and fraud related to his alleged ties to a Florida opthamologist. A mistrial was declared after a jury failed to reach a verdict in 2017, and the Justice Department dropped the charges in January 2018.

This is a developing story and will be updated. source

]]> https://goodshepherdmedia.net/hunter-bidens-defense-lawyers-vowed-to-put-president-biden-on-the-stand/ Tue, 22 Aug 2023 15:39:13 +0000 https://goodshepherdmedia.net/?p=15636 Hunter Biden’s defense lawyers vowed to put President Biden on the stand

Attorney Chris Clark said testimony by President Biden against his own DOJ would create a ‘constitutional crisis’

Jake Tapper admits ‘Trump was right,’ ‘Biden was wrong’ about Hunter Biden in 2020 presidential debate

Hunter Biden’s legal team once vowed to prosecutors that they would have President Biden take the stand to testify as a fact witness for the defense if his son faced criminal charges.

Biden’s then-attorney Chris Clark made the claim in a letter to prosecutors in October 2022, shortly after news leaked that the Justice Department had enough evidence against the first son to move forward with an indictment.

Clark warned that if the DOJ did bring charges relating to Hunter’s alleged purchase of a firearm while addicted to cocaine, the president would take the stand.

“President Biden now unquestionably would be a fact witness for the defense in any criminal trial,” Clark wrote in a 32-page letter obtained by Politico.

Hunter Biden’s attorneys vowed to prosecutors that they would have President Biden take the stand to testify as a fact witness for the defense if his son faced criminal charges last year. (Anna Moneymaker/Getty Images)

Clark withdrew from Hunter’s defense team last week, though it is unclear whether the decision came in relation to the leak of the document to Politico.

Hunter pleaded not guilty to federal tax and gun charges in late July after a previous plea agreement fell apart. Republicans had widely criticized the previous deal as far too lenient.

In the letter, Clark attempted to use the prospect of Biden’s testimony to ward off prosecution by the DOJ. He argued that moving forward with a criminal trial would force Biden to testify in conflict with his own Justice Department, something he said would result in a “constitutional crisis.”

“This of all cases justifies neither the spectacle of a sitting President testifying at a criminal trial nor the potential for a resulting Constitutional crisis,” Clark wrote.

Hunter pleaded not guilty to federal tax and gun charges in late July after a previous plea deal fell apart. Republicans had widely criticized the previous deal as far too lenient. (Photo by Celal Gunes/Anadolu Agency via Getty Images)

When Clark withdrew as Hunter’s attorney last week, he cited the potential of being summoned as a witness as the central reason.

Under Delaware Rule of Professional Conduct, which Clark pointed to in his filing to withdraw, “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless … disqualification of the lawyer would work substantial hardship on the client.”

“Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues,” the filing continued.

Hunter Biden was expected to plead guilty to two misdemeanor tax counts of willful failure to pay federal income tax, as part of plea deal to avoid jail time on a felony gun charge. (AP Photo/Patrick Semansky)

Hunter Biden was expected to plead guilty to two misdemeanor tax counts of willful failure to pay federal income tax,as part of plea deal under which he would have avoided jail time on a felony gun charge.

Judge Maryellen Noreika of the United States District Court for the District of Delaware declined to accept the terms of the agreement, calling it unconstitutional, “not standard” and “different from what I normally see.” source

]]> https://goodshepherdmedia.net/illinois-state-police-release-3-videos-from-in-custody-death-of-lamar-bell/ Tue, 22 Aug 2023 09:43:38 +0000 https://goodshepherdmedia.net/?p=15645 Illinois State Police release 3 videos from in-custody death of Rockford man, Lamar Bell

Lamar Bell, a Rockford man who died in Custody after telling Officers he needs a hosptial he swallowed all the cocaine!

Illinois State Police have released three videos from the in-custody death of Lamar Bell, a Rockford man who died last month.

State police released body camera footage, dashcam footage as well as in-squad camera footage.

The videos show officers pulling over Bell’s vehicle July 16 near the intersection of 10th Avenue and Kishwaukee Street. Officers approach Bell as he is sitting in the driver’s seat of the vehicle before asking him to get out of the vehicle.

Body camera footage shows Illinois State Police officers searching Bell’s vehicle and finding bags of cocaine inside of toilet paper rolls.

“What baggies?” Bell asks before acknowledging the baggies found inside the vehicle.

Bell responds “cocaine.”

Both the in-squad camera and the body camera footage later show Bell appearing to have a medical episode. Bell then starts calling for an ambulance before saying “just playing.”

A few moments later, Bell starts calling for an ambulance again, but he then says, “psych” when officers ask why he wants an ambulance.

According to the video, officers start getting Bell out of the vehicle and an ambulance is called about two minutes later.

The Winnebago County Coroner’s Office said Bell’s autopsy “did not show any traumatic injury” to Bell. Illinois State Police said the coroner’s autopsy report “supports the consumption of narcotics by Bell.”

Bell’s death remains under investigation by the Illinois State Police Division of Internal Investigation (DII). source

 

Illinois State Police: Rockford man who died during traffic stop consumed narcotics

 

 

]]> https://goodshepherdmedia.net/9-california-officers-charged-in-federal-corruption-case/ Fri, 18 Aug 2023 15:11:20 +0000 https://goodshepherdmedia.net/?p=15589 Authorities charge 9 current and former California police officers in corruption case

SAN FRANCISCO (AP) — Nine current or former Northern California police officers were charged Thursday in a federal corruption investigation that found evidence they committed civil rights violations and fraud in an effort to get a pay raise and lied on reports to cover up the use of excessive force, U.S. authorities said.

Ismail J. Ramsey, U.S. Attorney for the Northern District of California, filed four indictments that outlined charges including wire fraud, deprivation of rights under color of law, conspiracy against rights, and conspiracy to distribute anabolic steroids. Nine police officers and one community service officer are named in the charges, though only two are charged in multiple indictments.

The investigation centered on the departments in Antioch and Pittsburg, two cities in the San Francisco Bay Area. Only three of the officers remain employed by the departments and were not on active duty, officials said.

Arrest warrants were served Thursday in California, Texas and Hawaii, said Robert Tripp, special agent in charge of the FBI’s San Francisco Field Office. One has not yet been arrested, officials said.

Morteza Amiri, Eric Allen Rombough, Patrick Berhan, Samantha Peterson, Brauli Rodriguez Jalapa and Ernesto Juan Mejia-Orozco pleaded not guilty to various charges, and most were released on condition that they posted property bonds, the Bay Area News Group reported.

Rombough appeared in Oakland federal court dressed in ripped clothes, with bloody hands and knees and wearing a shirt that read: “don’t weaken,” the Bay Area News Group reported.

His attorney, Will Edelman, told the judge that there was “absolutely no reason” that his client had to be taken into custody and handcuffed because he would have willingly appeared if ordered.

The defendants could face decades in federal prison if convicted of the charges.

 

source

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Nine current or former Northern California police officers were charged Thursday in a federal corruption investigation that found evidence they committed civil rights violations and fraud in an effort to get a pay raise and lied on reports to cover up the use of excessive force, U.S. authorities said.

Ismail J. Ramsey, U.S. Attorney for the Northern District of California, filed four indictments that outlined charges including wire fraud, deprivation of rights under color of law, conspiracy against rights, and conspiracy to distribute anabolic steroids. Nine police officers and one community service officer are named in the charges, though only two are charged in multiple indictments.

The investigation centered on the departments in Antioch and Pittsburg, two cities in the San Francisco Bay Area. Only three of the officers remain employed by the departments and were not on active duty, officials said.

Arrest warrants were served Thursday in California, Texas and Hawaii, said Robert Tripp, special agent in charge of the FBI’s San Francisco Field Office. One has not yet been arrested, officials said.

Morteza Amiri, Eric Allen Rombough, Patrick Berhan, Samantha Peterson, Brauli Rodriguez Jalapa and Ernesto Juan Mejia-Orozco pleaded not guilty to various charges, and most were released on condition that they posted property bonds, the Bay Area News Group reported.

Rombough appeared in Oakland federal court dressed in ripped clothes, with bloody hands and knees and wearing a shirt that read: “don’t weaken,” the Bay Area News Group reported.

His attorney, Will Edelman, told the judge that there was “absolutely no reason” that his client had to be taken into custody and handcuffed because he would have willingly appeared if ordered.

The defendants could face decades in federal prison if convicted of the charges.

Tripp said the arrests were the result of a two-year investigation.

“Any breach of the public’s trust is absolutely unacceptable,” Tripp said while discussing charges against Antioch officers that include using their official positions as officers to deprive people of their rights.

Charges against Amiri, Rombough and Devon Christopher Wenger say the three Antioch police officers conspired between February 2019 and March 2022 “to injure, oppress, threaten and intimidate residents of Antioch, California” and later falsified reports about the encounters.

In obscenity-laden text messages, the three men referred to some suspects as “gorillas.” They laughed and joked about harming people who apparently had surrendered or appeared to be asleep by setting Amiri’s police dog on them or Rombough shooting them with a 40mm “less-lethal” projectile launcher, the indictment said.

Prosecutors say from 2019 to 2021, the dog bit 28 people while Rombough used the launcher 11 times in 2020 and 2021.

Amiri posted graphic photos of the dog wounds, and Rombough said he was keeping the projectiles to make a trophy flag, according to the indictment.

In one case, a man suspected of five armed robberies had given up and was lying on the ground when Amiri’s K-9 bit him, the indictment alleged.

In one text, Amiri wrote: “let’s (f-obscenity) some people up next work week.”

Amiri says that he will find some action and write up the police report, adding: “Just come over and crush some skulls.”

In one 2020 text sequence, Amiri says that he confronted a transient he believed had stolen his mail “and dragged him to the back of a car to ‘discuss’ the matter.”

“Lol. Putting a pistol in someone’s mouth and telling them to stop stealing isn’t illegal,” he texted. “It’s an act of public service to prevent further victims of crimes”

“Defendants authored police reports containing false and misleading statements to suggest that the force they used was necessary and justifiable,” the indictment said. “In truth and in fact, and as the Defendants well knew, Defendants willfully used excessive force in numerous incidents, including those identified in this Indictment.”

Police unions did not immediately respond to requests for information on whether the defendants had lawyers who can speak on their behalf. Emails to the Pittsburg and Antioch police departments seeking comment were not immediately returned.

Thousands of incendiary text messages by more than a dozen officers in the Antioch Police Department had previously come to light and led to a federal lawsuit. The texts contained derogatory, racist, homophobic and sexually explicit language. In some of them, the officers bragged about making up evidence and beating up suspects. They freely used racial slurs and made light of the police killing of George Floyd in 2020.

The city of Antioch, with about 115,000 residents 45 miles east of San Francisco, was once predominantly White but has diversified in the last 30 years. Federal and state prosecutors have dropped or dismissed dozens of cases that relied on the impugned officers, and the city now faces a federal civil rights lawsuit over the text messages.

Jalapa, Mejia-Orozco and Amanda Carmella Theodosy/Nash, as well as Antioch community service officer Peterson, were charged with conspiracy to commit wire fraud and wire fraud surrounding allegations they had other people take and complete online university courses toward a criminal justice degree. The police departments offered reimbursement for college tuition and pay raises for those who graduate college, prosecutors said.

Two Antioch officers, Daniel Harris and Wenger, were charged with several counts related to distributing anabolic steroids.

Another Antioch officer, Timothy Manly Williams, faces charges related to the obstruction of a federal investigation for allegedly using a personal cellphone in 2021 to talk to the target of an FBI wiretap investigation and then made sure the call wasn’t recorded or accurately logged.

“Today is a dark day in our city’s history, as people trusted to uphold the law, allegedly breached that trust and were arrested by the FBI,” Antioch Mayor Lamar Thorpe said in a statement. “As our city absorbs this tragic news, we must come together as one. Today’s actions are the beginning of the end of a long and arduous process.”

Thorpe is among three Black, progressive members of the five-person council who have said they are committed to holding police accountable.

“To those that have accused me and others of being anti-police for seeking to reform the Antioch Police Department, today’s arrests are demonstrative of the issues that have plagued the Antioch Police Department for decades,” he added. source

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