TOPICAL INDEX OF APPELLATE OPINIONS

• State v. Talmadge, 196 Ariz. 436, 999 P.2d 192, 197 (2000). Rebuking counsel for their “general unwillingness of trial counsel to make reasonable concessions to accommodate one another toward the goal of achieving factual stability on the record,” the Court cited to Rule 3.8 of the Rules of Professional Conduct and noted that ”[t]he duty to accomplish justice is particularly imposed on prosecutors.”
  
• Thomas v. Com., Not Reported in S.W.3d, 2004 WL 2913237 (Ky. 2004), rehearing granted (March 17, 2005). Though unprofessional, prosecutor’s actions of laughing and making facial gestures during direct examination of defendant did not deny defendant fair trial.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.

• Newman v. State, 384 Md. 285, 863 A.2d 321 (2004). Criminal defendant could invoke attorney-client privilege in criminal case, even though her attorney in domestic action had disclosed under Rule 1.6 defendant’s plot to kill her husband to judge in domestic case.
• Al Odah v. U.S., 346 F. Supp. 2d 1 (D.D.C. 2004). Government’s proposed real time monitoring and classification review procedures for legal mail and attorney notes “impermissibly burden the attorney-client relationship and abrogate the attorney-client privilege.” Court offered alterative procedure.
• Michael G. Walsh, Applicability of Attorney-Client Privilege to Communications Made in Presence of or Solely to or by Third Person, 14 A.L.R.4th 594 (1982, current through 2005).

• Thompson v. Com., 147 S.W.3d 22 (Ky. 2004). Defendant asserted that, during penalty phase closing argument, Prosecutor made statements implying he was acting on behalf of victim rather than Commonwealth of Kentucky. While finding prosecutor’s comments to be “perhaps approaching the line of impropriety,” Court held fell within latitude afforded counsel in closing arguments. Other comments made by prosecutor, including use of terms “mean,” “evil,” and “vile,” not constitute prosecutorial misconduct.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Prosecutor’s statements during closing argument in which threatened not to prosecute similar cases if jury did not return guilty verdict were improper, but did not prevent defendant from receiving fair trial.
• Soto v. Com., 139 S.W.3d 827 (Ky. 2004). During penalty phase closing argument, it was not improper for prosecutor to thank jury on behalf of victims’ family, state, police, and community. Various other instances of alleged misconduct in closing of penalty phase were not misconduct.
• Simpson v. Com., No. 2002-CA-000119-MR, 2004 WL 360980 (Ky. App. 2004). Prosecutor’s statements during closing argument that defendant presented no alibi witnesses, that nobody refuted testimony of prosecution witnesses who identified defendant as guilty party, and that only evidence offered in case supported prosecution’s case not deprive defendant of fair trial because all statements allowed under state law.
• Miller v. Com., No. 2001-SC-1010-MR, 2003 WL 22415623 (Ky. 2003). Prosecutor’s remarks that defendant was “cutting his losses” by asking jury to only find manslaughter was permissible, since it only amounted to prosecution commentary on defense strategy.
• Barnes v. Com., 91 S.W.3d 564 (Ky. 2002). Prosecutor stated during closing argument that acquitting defendant would be crime worse than murder. New trial granted on appeal because only purpose of statement was to inflame jury. Appellate court also cited to numerous other instances of prosecutorial misconduct arising from prosecutor’s behavior in trial.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Prosecutor’s penalty phase comment about time and trouble defendant’s failure to plead guilty had caused held to be improper.
• Mack v. Com., 860 S.W.2d 275 (Ky. 1993). Prosecutor’s comments during closing argument that intimated there was overwhelming amount of evidence that was kept out because of legal formalities were improper and warranted granting of new trial on appeal.
• Dean v. Com., 844 S.W.2d 417 (Ky. 1992). Given totality of circumstances and overwhelming amount of evidence against defendants, it was not improper for prosecutor to refer to defendants as “crazed animals,” nor for prosecutor to state that State had done its job, and that it was time for jury to do theirs.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Wager v. Com., 751 S.W.2d 28 (Ky. 1988). New trial granted in part due to improper demonstration conducted by prosecutor during closing argument.
• Morris v. Com., 766 S.W.2d 58 (Ky. 1989). New trial granted because of prosecutor improper emphasis of heroic and leadership qualities of victim and victim’s family.
• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). New trial granted for number of reasons including following improper statements during closing arguments: prosecutor’s continuous misstatement of defense witness’s testimony; comment about possibility of appeal; comment that jury merely recommends death penalty, not impose it; and suggestion that, if not convicted, defendant would kill again.
• Clausell v. State, 326 Mont. 63, 106 P.3d 1175 (2005). Prosecutor’s comments that defense counsel was “hiding ball” were found to be directed at focusing jury on evidence at hand, rather than attack on defense counsel’s integrity.
• State v. Martin, 305 Mont. 123, 23 P.3d 216 (2001). Prosecutor’s comments during closing argument referring to sentencing were improper, but nonprejudicial.
• State v. Stewart, 303 Mont. 507, 16 P.3d 391 (2000). Appellate court held that several comments of prosecutor during closing argument were improper, including those concerning state’s burden of proof (prosecutor attempted to define reasonable doubt in contradiction of state law), prosecutor’s personal opinion (references to some other dude defense), and sentencing of defendant (told jury that judge could sentence defendant to treatment instead of jail).
• State v. Whitlow, 285 Mont. 430, 949 P.2d 239 (Mont. 1997). No prosecutorial misconduct found where defense counsel’s closing argument opened door for prosecution’s closing argument comments suggesting defense attempted to keep evidence from them.
• State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002). Referring to Rules of Professional Conduct and role and obligation of prosecutor, Court held prosecutor’s references to Columbine school shootings and Oklahoma bombing to be improper as deflecting jury from facts at hand and appealing to their passions; also held repeated name-calling by prosecutor (“quitter,” “loser,” “mean,” “lower than dirt on a snake’s belly”) to be improper.
• Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 554 S.E.2d 356 (2001). In civil case, appellate court upheld trial court’s sanctions against attorney who violated rules of professional conduct during closing arguments at trial; sanctions included suspension of attorney's practicing privileges for one year and $50,000-plus penalty).

• Blair v. Com., 144 S.W.3d 801 (Ky. 2004). New trial granted where prosecutor used closing argument to inappropriately inject extra-judicial facts into record.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Even though prosecutor misrepresented facts in closing argument, defendant was not prevented from receiving fair trial.
• Edmondson v. Com., No. 2001-SC-0253-MR, 2002 WL 32065611 (Ky. 2002). Prosecutor’s reference to refusal of defense witness to take polygraph during closing argument constituted reversible error, particularly since trial judge had previously excluded any evidence of failure to take polygraph.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Although prosecutor’s incorrect quotation of defendant from tape played for jury was error, harmless because jury could have reviewed tape for itself.

• Rudolph v. Com., No. 2003-SC-0050-MR, 2004 WL 536025 (Ky. 2004). Prosecutor’s comments referencing defendant’s failure to introduce certain evidence was fair comment on evidence and did not impermissibly shift burden.
• State v. Soraich, 294 Mont. 175, 979 P.2d 206 (1999). Prosecutor’s closing argument comments that certain evidence defense had indicated would be presented in their opening argument had not indeed been presented did not constitute improper burden shifting.

• Ragland v. Com., No. 2002-SC-0388-MR, 2003-SC-0084-TG, 2004 WL 2623926 (Ky. S. Ct. 2004). New trial ordered after prosecutor improperly commented on defendant’s failure to testify in violation of defendant’s Fifth Amendment rights.

• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (Ga. 1988). While permissible for prosecutor to argue to jury that facts lead to conclusion defendant is guilty, it is improper for prosecutor to express personal opinion that defendant is guilty in presence of jury.
• State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001). Citing to rules of professional conduct and ABA standards, Court found reversible error in prosecutor’s closing argument that included comments that people lie when convenient, references to sole defense witness’ post-Miranda silence, and misstatement of defense counsel's argument.
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Kansas Rules of Professional Conduct and American Bar Association Standards of Criminal Justice clearly state improper for lawyer to comment on witness' credibility, and is responsibility of both prosecutor and trial judge to ensure that closing argument is kept within proper bounds. “A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.... The State's characterization of the prosecutor's statement that a defendant is lying, as a comment on the evidence, misses the mark. The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. ... Here [the prosecutor] introduced into the case his personal opinion of [the defendant's] credibility. He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of the State behind the prosecutor's personal assurances."
• Miller v. Com., No. 2002-SC-0527-MR, 2005 WL 119745 (Ky. 2005). While improper, prosecutor’s reference to defendant as “cancer in community” did not prevent defendant from receiving fair trial.
• Meade v. Com., No. 2003-CA-001870-MR, 2004 WL 3016296 (Ky. App. 2004). No prosecutorial misconduct was found when prosecutor used closing arguments to strongly hint defendant was lying, since comments were consistent with evidence offered by prosecution.
• State v. Arlington, 265 Mont. 127, 875 P.2d 307 (1994). Court reiterated its “strong disapproval” of characterizing witness' testimony as lies or witness as liar or otherwise commenting upon credibility of witness. Although error, harmless due to overwhelming evidence.
• State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995). Reiterating that it is “highly” improper to characterize either accused or witnesses as liar or offer personal opinion(s) on credibility and that Rules of Professional Ethics prohibit attorney from asserting personal opinions on credibility of witness, or guilt or innocence of accused, Court granted new trial because, during closing argument, prosecutor improperly referred to defense witnesses as liars, expressed personal opinion as to defendant’s guilt, and commented on evidence not admitted.
• State v. Campbell, 241 Mont. 323, 787 P.2d 329 (1990). Not reversible error for prosecutor to characterize defendant as liar in rebuttal closing argument when simply responsive to defense counsel’s characterization of defendant in defense closing argument.
• State v. Statczar, 228 Mont. 446, 743 P.2d 606 (Mont. 1987). While prosecutor improperly argued, during closing argument, that prosecutor’s office too busy to prosecute innocent persons, no evidence of resulting undue prejudice. Court, however, cautioned prosecutors to refrain from utilizing this trial tactic.
• Thomas M. Fleming, Negative Characterization or Description Of Defendant, by Prosecutor during Summation of Criminal Trial, as Ground for Reversal, New Trial, or Mistrial-- Modern Cases, 88 A.L.R.4th 8 (1991, current through 2005).
• William B. Johnson, Propriety and Prejudicial Effect of Comments by Counsel Vouching for Credibility of Witness--State Cases, 45 A.L.R.4th 602 (1986, current through 2005).

f. Failure to Testify, Defendant’s

g. Right to Remain Silent, Comment on

COMPETENCY

CONSULTATION WITH ANOTHER ATTORNEY

CONFLICTS OF INTEREST (See also Special Prosecutors)

a. Dual Employment/Dual Representation

b. Former Clients

DEFENSE COUNSEL

DIRECT EXAMINATION

• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). Prosecutor was accused of prosecutorial misconduct on numerous grounds, many of which Court found to be justified. In fact, Court stated that prosecutor’s direct and cross-examination of witnesses “reads like a bad television scenario.” One example given was prosecutor’s cross-examination of defense psychiatrist during which prosecutor repeatedly and consistently misstated doctor's testimony. Prosecutor also improperly, during closing argument, commented on consequences of particular verdict. Case reversed due to these and other errors.
• State v. Duffy, 300 Mont. 381, 6 P.3d 453 (2000). Not improper for prosecutor to elicit testimony from witness concerning desire to see defendant convicted when defense counsel opened door to this line of questioning.
• State v. Gray, 207 Mont. 261, 673 P.2d 1262 (1983). Although Court found no excuse for prosecutor’s failure to caution witness against making reference to defendant’s parole status when prosecutor promised to caution witness, it upheld trial court’s denial of mistrial motion due to lack of resulting prejudice.

• Fred C. Zacharias, The Professional Discipline Of Prosecutors, 79 N.C. L. Rev. 721 (2001).

• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• State v. Stewart, 303 Mont. 507, 16 P.3d 391 (2000). During trial, prosecutor discovered new evidence and, without disclosing its existence to defense, used it when trial resumed. New trial was ordered because of prosecutor’s failure to notify defendant of newly discovered evidence; Court emphasized prosecution’s continuing obligation to disclose evidence.

DISPOSITION OF CASES

ENDORSEMENTS/RECOMMENDATIONS

ETHICAL VIOLATIONS, DUTY TO REPORT OR THREATENING TO REPORT FOR

EVIDENCE, DISCLOSURE, RECEIPT OR USE OF (See also Discovery, Issues Related to)

• People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. denied, Jones v. New York, 439 U.S. 846 (1978). Defendant’s case continued several times for various reasons including prosecution’s inability to locate the complaining witness; prosecution learned complaining witness dead while parties engaged in plea negotiations, but not disclose to defense. Defense learned of death after defendant pled guilty. Court held that, to extent death might have been admissible fact at trial, it would not have constituted exculpatory evidence, it would not fall under Brady v. Maryland, and prosecution’s failure to disclose not deny defendant due process. Court did note that, “…the appropriate remedy might be limited to disciplinary proceedings. In any event, we now express no view on this aspect of the matter.”
• People v. Rice, 69 N.Y.2d 781, 513 N.Y.S.2d 108, 505 N.E.2d 618 (1987). Before defendant’s trial, victim died of unrelated causes. Prosecutor not tell defense victim had died; in fact, misled defense into believing victim still alive and going to testify. Citing equivalent of Model Rules 3.3 and 3.8, Court stated acts of prosecutor constituted serious violation of duties as attorney. “Such conduct is reprehensible and cannot be condoned.” “It is the prosecutor’s absolute duty to correct what he knows to be false and elicit the truth, for society gains not only when the guilty are convicted but when criminal trials are fair.” “Egregious misconduct of this kind by the prosecutor undermines confidence, not only in his profession, but in government and the very idea of justice itself.”
• Maldonado v. New Jersey ex rel. Administrative Office, 225 F.R.D. 120 (D.N.J. 2004). Reviewing the doctrine of waiver of attorney-client privilege by inadvertent disclosure and factors necessary to finding such, Court held defendant not waive privilege by inadvertent disclosure of letter written by defendant’s counsel that contained blueprint of defense. Court also reviewed work product privilege and held not waived by inadvertent disclosure of letter. Rejecting defendant’s assertion that case should have been dismissed due to Plaintiff’s lawyers’ retention and use of letter and failure to notify defense of receipt, Court did hold that counsel should be disqualified from representing plaintiff. Good discussion of privileges, waiver analyses and sanctions.
• V. Woerner, Prejudicial Effect of Prosecuting Attorney's Misconduct in Physically Exhibiting to Jury Objects or Items Not Introduced as Evidence, 46 A.L.R.2d 1423 (1956, current through 2004).

IMMUNITY

• Ronek v. Gallatin County, 227 Mont. 514, 740 P.2d 1115 (1987). Lawsuit against county dismissed based on doctrine of prosecutorial immunity which immunizes prosecutor and county from from civil liability for conduct within scope of prosecutor’s duties.
• Genzler v. Longanbach, 384 F.3d 1092 (9th Cir. 2004). Assistant DA and DA Investigator are entitled only to qualified immunity from 1983 action in situation where they participated in investigation of criminal activity at time before probable cause had been established.
• KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004). Prosecutor entitled to absolute immunity for conduct relating to post-indictment search pursuant to warrant seeking evidence of charged crime. Only qualified immunity was available for search for evidence of uncharged crime.

JUDGES EX PARTE CONTACT WITH

JUDGES, RELATIONSHIP OR INTERACTION WITH

JURY COMMUNICATION/SELECTION

a. Selection of Jury

• Hall v. Com., No. 2001-SC-0814-MR, 2003 WL 21254856 (Ky. 2003). Prosecutor’s statement during voir dire that he was “responsible for representing crime victims,” specifically naming defendant’s ex-wife and son, found by Court to not necessarily mean that prosecutor has abdicated responsibility to represent all constituents within Commonwealth, including defendant. And, because Court held that statement alone could not be considered so inflammatory as to cause jury to base decision on guilt or innocence or punishment just on who is victim.
• State v. Bates, 508 So.2d 1346 (La. 1987). Improper for prosecutor to contact potential jurors by letter and questionnaire prior to trial.
• Clausell v. State, 326 Mont. 63, 106 P.3d 1175 (2005). Prosecutor’s comments during voir dire and closing argument to effect that defense was “hiding ball” were meant to focus jury on evidence at hand, and were not attack on defense counsel’s integrity.
• State v. Dixon, 264 Mont. 38, 869 P.2d 779 (Mont. 1994). Although improper, prosecutor’s derogatory comments about defense counsel during jury selection (comments essentially characterizing defense counsel’s voir dire questions as wrong or improper) and references to alleged victim as “female rape victim” in violation of order in limine, did not deny defendant of fair trial.

b. Statements to or Conduct toward Jurors during Trial

• State v. Probst, 623 So. 2d 79 (La. App. 1993). Prosecutor’s statements to jury venire two days prior to defendant’s trial that they were dismissed for day and needed to return two days later to determine guilt of defendant :violated applicable ethical guidelines, and [the Court did] not approve of [prosecutor’s] conduct. Court concluded that jury not tainted so new trial motion properly denied.
• State v. Washington, 626 So. 2d 841 (La. App. 1993). Before defendant or defense counsel were in the courtroom, clerk of court and elected prosecutor spoke to jury; comments included clerk’s comments that often defendants feel pressure when juries are summoned and they plead guilty so jury gets to go home and prosecutor’s comments related to importance of jury service. Citing to Rule 3.5(b) of Louisiana Rules of Professional Conduct, Court held that was unprofessional conduct for prosecutor to make any ex parte remarks in presence of jury.
• People v. Schram, 142 N.W.2d 662 (Mich. 1966). Brief conversation between juror and prosecutor in public corridor relating to when case might come to end did not entitle defendant to reversal, although it was improper for prosecutor to make reply that he did.

c. Contact after Conclusion of Trial

MISCELLANEOUS

• State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004). Failure to have defendant present during in-chambers hearing deciding whether conflict of interest required disqualification of his trial counsel was error requiring reversal.
• Wells Dairy, Inc. v. American Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004). Overarching inquiry in determining whether document was prepared in anticipation of litigation is whether, in light of nature of document and factual situation in case, document can fairly be said to have been prepared or obtained because of prospect of litigation.
• Everage v. Elk & Elk, 159 Ohio App.3d 220, 823 N.E.2d 516 (2004). Uncertified grievances filed with office of disciplinary administrator are not discoverable in legal malpractice litigation due to rules providing that documents relating to review and investigation of grievances shall be private, unless waived by attorney.
• Mainor v. Nault, 101 P.3d 308 (Nev. 2004). In case of first impression, court allowed evidence of Rules of Professional Conduct to be admitted as minimum standards of attorney performance in legal malpractice trial.

MISREPRESENTATION OF FACTS OR LAW

OPENING STATEMENTS

PERJURED OR FALSE TESTIMONY, POTENTIONAL OR ACTUAL

PLEA AGREEMENTS AND NEGOTIATIONS (See also Prosecute, Decision or Discretion to)

• State v. Boulier, 81 Conn. App. 824, 841 A.2d 1217 (2004). A prosecutor involved in plea negotiations with defendant may file additional charges and seek greater sentence if defendant does not accept State’s offer provided prosecutor does not act with vindictiveness.
• People v. Tainter, 294 Ill.App.3d 634, 691 N.E.2d 55 (Ill. App. 1998), vacated on other grounds, 304 Ill.App.3d 847, 710 N.E.2d 158, 237 Ill. Dec. 735 (Ill. App. 1999). Generally not improper to offer defendant reduced sentence to plead guilty but to recommend greater sentence if offer refused, particularly when sentence is within statutory limits.

PROSECUTE, DECISION OR DISCRETION TO

• Wallace v. State, 689 So.2d 1159, 1164 (Fla. App. 1997), quashed on other grounds, State v. Wells, 734 So.2d 402 (Fla. 1999). “There is no presumption of prosecutorial vindictiveness when additional charges are filed, even at the beginning of trial, after a defendant's refusal to plead guilty to the initially charged crimes.”
• People v. Stafford, 325 Ill. App. 3d 1069, 759 N.E.2d 115, 121 (2001). “This court has held that prosecutorial vindictiveness occurs when reindictment would subject a defendant to increased sanctions or when reindictment takes place after the State has terminated part of an indictment by way of motion for an order of nolle prosequi and the defendant has successfully appealed his conviction. Under such circumstances, reindictment is vindictive because the State is retaliating from the defendant's successful appeal by reindicting. ‘Such conduct by prosecutors creates an enormous potential for discouraging defendants from appealing legitimately for fear of greater or additional offenses arising out of the same cause of action.’ When there is a realistic likelihood of vindictiveness, the State bears the burden of demonstrating objective on-the-record facts which justify a decision to prosecute charges previously nol-prossed.” (citations omitted.)
• Reynolds v. State, 625 N.E.2d 1319 (Ind. App. 1993). Filing of additional charges after corroborating information is gained does not establish vindictiveness.
• Vaxter v. State, 508 N.E.2d 809 (Ind. 1987). Where additional charges are filed prior to trial, there is no presumption of vindictiveness.
• Cherry v. State, 414 N.E.2d 301 (Ind. 1981). Appearance of prosecutorial vindictiveness when prosecutor files more numerous and more severe charges against defendant after successful exercise of right to appeal.
• State v. Stewart, 656 So. 2d 677, 680-681 (La. App. 1995). “Defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness. In that regard, the court will examine the state's actions in the context of the entire proceedings. The events in the case will create a presumption of vindictiveness if, to a reasonable mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the exercise of legal rights. But where the government's conduct is equally attributable to legitimate reasons, a defendant must prove actual vindictiveness for a presumption will not apply. A mere opportunity for vindictiveness does not suffice…. More importantly, a district attorney has great discretionary power to file an habitual offender bill under [state law], just as he has the initial unlimited power to prosecute "whom, when, and how" he chooses.” (citations omitted.)
• State v. Eaton, 462 A.2d 502 (Maine 1983). Greater charges may be dismissed if it appears these charges were filed to harass defendant. Court always has power to dismiss indictment duplicating Class C or higher complaint previously dismissed by Court, if clearly appears that “whole course of action” by prosecution amounts to harassment of defendant. “Carefully considered” exercise of that power by Court can afford appropriate protection against prosecutorial abuse, without creating hard-and-fast rule automatically barring or limiting later prosecution.
• Commonwealth v. McGowan, 400 Mass. 385, 510 N.E.2d 239 (1987). Institution of new charges after dismissal of earlier, unrelated charges does not by itself constitute vindictiveness.
• People v. Ryan, 451 Mich. 30, 545 N.W.2d 612 (1996). Mere threat of additional charges during plea negotiations does not amount to actual prosecutorial vindictiveness where bringing additional charges is within prosecutor’s charging discretion.
• State v. Pettee, 538 N.W.2d 126 (Minn. 1995). When prosecutor obtains indictment charging greater offense subsequent to defendant’s successful motion to dismiss his indictment for curable defect, there is no presumption of vindictiveness.

PROSECUTOR, ROLE/DUTIES OF

• State v. Talmadge, 196 Ariz. 436, 999 P.2d 192, 197 (2000). Rebuking counsel for their “general unwillingness of trial counsel to make reasonable concessions to accommodate one another toward the goal of achieving factual stability on the record,” the Court cited to Rule 3.8 of the Rules of Professional Conduct and noted that ”[t]he duty to accomplish justice is particularly imposed on prosecutors.”
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Prosecutor is servant of the law and representative of people of Kansas. Prosecutor has special obligation to avoid improper personal insinuations during closing argument.
• State v. Peake, 353 S.C. 499, 579 S.E.2d 297 (2003). Citing to Rule 3.8 of the state’s Rules of Professional Conduct and cases from other jurisdictions, Court discussed role and duty of prosecutor.
• State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710, 717 (1977). “This Court has uniformly held that a prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law…. As a corollary to this rule, the Court has also recognized that the standard of fair and impartial presentation required of the prosecutor may become more elevated when the offense charged is of a serious or revolting nature, as it is recognized that a jury in this type of case may be more easily inflamed against the defendant by the very nature of the crime charged.”
• Berger v. United States, 295 U.S. 78, 88 (1935). “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

PUBLICITY/NEWS MEDIA

• People v. Mulligan, 568 P.2d 449 (Colo. 1977). Citing to ABA Standards Relating to Fair Trial and Free Press, ABA Standards Relating to The Prosecution Function, and Code of Professional Responsibility, Court stated could not condone participation of prosecutor and deputy prosecutor n radio interview about case.
• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (1988). Third trial of defendant ended in hung jury; prosecutor made comment to press that was confident next time he’d get “the right result.” Citing to the Georgia disciplinary rules, Court reiterated that extra-judicial statement with respect to prosecutor's or defense counsel's opinion on guilt or innocence of defendant, evidence, or merits of case is expressly prohibited. Court did note that rules do not prohibit lawyer from replying to publicly made charges of misconduct against him.
• Gulley v. State, 779 So.2d 1140 (Miss. App. 2001). Prosecutor’s comment to press that evidence would show defendant embezzled money constituted comment on defendant’s guilt in violation of Rule 3.6 of state Rules of Professional Conduct. “[A]n ethical violation by the prosecutor does nothing to negate the guilt of an indicted defendant…. Although the district attorney may be subject to ethical sanctions for such a violation, that does not per se have any effect on the fairness of the trial. The trial judge had to consider all the issues but not act as an attorney discipline panel in a criminal case against the indicted defendant.”
• Ernst v. Burdick, 687 N.W.2d 473 (N.D. 2004). Disclosure of defendant’s criminal history to media does not create private case of action for defamation under North Dakota version of Uniform Criminal History Records Act.
• Brown v. Gatti, 195 Or.App. 695, 99 P.3d 299 (2004). A lawyer’s post-trial comments to media about case are not covered by absolute privilege that immunizes lawyers from liability for defamatory statements made in course of litigation.
• Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004). Court reiterated that, pursuant to judicial privilege, person entitled to absolute immunity for communications issued in regular course of judicial proceedings and which are pertinent and material to redress or relief sought. Lawyer who faxed reporter copy of malpractice complaint filed with court not entitled to absolute immunity for alleged defamatory statements contained in complaint.

RECORDINGS

REPRESENTED PERSONS, CONTACT WITH

• People v. Son, 723 P.2d 1337, 1342 (Colo. 1986). Prosecutor’s communication with defendant, which related solely to unrelated criminal charges and not pending charges for which defendant had counsel, was not in violation of disciplinary rules. “To hold that DR7-104(A)(1) is violated by any communication between a defendant who has obtained counsel on pending charges and agents of the prosecution would preclude prosecutorial agents from investigating possible obstructions of justice such as jury tampering, bribery, or intimidation of witnesses. Accepting the defendant's interpretation of DR7-104(A)(1) would convert the rule into a shield of immunity from investigation for subsequent criminal acts committed by a defendant who has acquired the services of counsel in connection with a criminal charge. We decline to construe DR7-104(A)(1) in such a manner….”
• People v. Rubanowitz, 688 P.2d 231, 248 (Colo. 1984). Prosecutor’s investigator in charge of general investigation into activities of group to which defendant belonged. While investigator interviewing child named as child abuse victim in subsequently filed information against defendant, defendant unexpectedly entered child's residence, interrupted interview, and began to describe group’s activities. Investigator told defendant to stop talking and consult his attorney. Three days later, Investigator and others met with defendant and defendant's attorney; defendant volunteered certain information and agreed to provide Investigator with documentary evidence related to group. Defendant’s attorney told him not to talk with or disclose any documents to police in his absence. Investigator subsequently met with defendant on two occasions without defendant’s attorney; defendant provided investigator with documents at both meetings. Investigator did not advise defendant of his Miranda rights at any time after initial meeting. Court rejected defendant’s contention that investigator’s actions violated disciplinary rule by finding that defendant, who had counsel and acted contrary to his advice, knew he was subject of investigations and, therefore, “policy of advance warning to potential defendants which underlies ABA Standard 3-3.2(b) and Disciplinary Rule 7- 104(A)(1) was fully satisfied here.”
• Suarez v. State, 481 N.E.2d 1201 (Fla. 1985). Prosecutor prohibited from communicating with defendant known to be represented by attorney without obtaining prior consent of attorney, although defendant initiated contact and was willing to speak with prosecutor.
• State v. Robinson, 115 Idaho 800, 770 P.2d 809 (1989). Prosecutor’s initiation of conversation with criminal defendant during trial recess promising rigorous cross-examination was improper communication with party known to be represented by counsel.
• People v. White, 209 Ill.App.3d 844, 567 N.E.2d 1368, 1386 (1991). Rule prohibiting communication with represented defendant applies to investigators and informants if act as alter ego of prosecutor. “Government investigators and informants act as the alter ego of the prosecutor when they act at the behest of and with specific instructions from that prosecutor to elicit incriminating statements from the defendant. Merely instructing an informant to induce the defendant to talk is not sufficient to constitute the informant the alter ego of the prosecutor. However, where the prosecutor instructs the informant how to elicit incriminating statements by telling him what to say or ask, the informant may be considered the alter ego of the prosecutor. …When not acting as the alter ego of the prosecutor, government investigators may engage in legitimate investigative techniques, including the use of an informant to eavesdrop upon and tape-record a conversation with the defendant.”
• People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979). Prosecutor prohibited from communicating with defendant known to be represented by attorney without obtaining prior consent of attorney; fact that defendant initiated contact and willing to speak with prosecutor not change prohibition.
• State v. Miller, 600 N.W.2d 457, 463-464 (Minn. 1999). “The purpose of a disciplinary ‘no-contact rule’ is generally considered to be to protect the represented individual from ‘the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.’ It serves ‘to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact.’ The same concerns apply to a corporate party…. The ambit of MRPC 4.2 is not to be confused with an individual's constitutional right to counsel. In contrast to protecting the client's right to counsel, MRPC 4.2 protects the right of counsel to be present during any communication between the counsel's client and opposing counsel. The focus of MRPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party's attorney. The right belongs to the party's attorney, not the party, and the party cannot waive the application of the no-contact rule - only the party's attorney can approve the direct contact and only the party's attorney can waive the attorney's right to be present during a communication between the attorney's client and opposing counsel.” (citations omitted.) Court held that Rule 4.2 is not limited to only the civil context or in criminal cases only after charges have been filed. Court also interpreted "authorized by law" exception to Rule 4.2 to mean that ”legitimate investigative processes may go forward without violating MRPC 4.2 even when target of investigation is represented by counsel, but when process goes beyond fair and legitimate investigation and is so egregious that it impairs fair administration of justice, it is not "authorized by law." Prosecutor was found to be responsible for investigator actions that violated Rule 4.2.
  
• Gregory G. Sarno, Communication with Party Represented by Counsel as Ground for Disciplining Attorney, 26 A.L.R.4th 102 (1983, as updated 2004).

SPECIAL PROSECUTORS (See also Conflicts of Interest)

SUBPOENAS

WITNESSES (See also Represented Persons, Contact with)

a. Communications with Witnesses

• Hillard v. Com., No. 2002-SC-0702-MR, 2005 WL 384778 (Ky. 2005). Prosecutor’s use of subpoenas to obtain ex parte interviews of witnesses prior to trial was improper but did not require dismissal of indictment or retrial; Court noted that appropriate cure for such misconduct is to prohibit prosecutor from using any information obtained solely from improper interview. Court noted that perjury warnings are not per se improper, but improper only when prosecutor's perjury warning interfered substantially with witness's free and unhampered choice to testify.
• Cash v. Com., 892 S.W.2d 292, 294 (Ky. 1995). Learning that potential witnesses had lied to grand jury, prosecutor told both witnesses that would not prosecute for perjury if they testified truthfully at trial. Prosecutor kept promise regarding one witness; refused to call other witness and, in fact, threatened to prosecute for perjury if witness testified for defense. Court held prosecutor’s failure to adhere to promise made to witness constituted level of prosecutorial misconduct that "breeds contempt for integrity and good faith" and "destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations."
  
• Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 Ky. L.J. 1001 (1999).

• State v. Williams, 326 S.C. 130, 485 S.E.2d 99, 102 (1997). Prosecutor told counsel for cooperating co-defendant that not in cooperating co-defendant’s best interest to talk to defendant’s counsel, but if did talk, prosecutor should be present. Court held comments amounted to improper intimidation of potential defense witness and that denial of due process results if “intimidation amounts to ‘substantial government interference with a defense witness’ free and unhampered choice to testify.’”

• State v. Clausell, 474 So.2d 1189 (Fla. 1989). Entire office of prosecutor not disqualified when he is called as witness in case prosecuted by office. While there exists no “inherent right” to disqualification of entire prosecutor’s office when member is called as witness in case prosecuted by other attorney in same office, motion to disqualify should be granted if actual prejudice is shown.
• State ex rel. Goldsmith v. Superior Court of Hancock County, 386 N.E.2d 942 (Ind. 1979). Entire prosecutor’s office not disqualified when assistant prosecutor or other staff member becomes witness in case prosecuted by office; however, if elected prosecutor is witness, entire staff must be disqualified to maintain integrity of process of criminal justice. Court held that when assistant prosecutor moves for disqualification and appointment of special prosecutor, Court must disqualify entire office and appoint special prosecutor. In its analysis under the Disciplinary Rules, the Court distinguished between relationship between prosecuting attorney and his sole client, the citizens of circuit in which he serves, and lawyer and ordinary attorney-client relationship.
• Morris v. Commonwealth, No. 2905-00-2, 2002 WL 53886 (Va. App. 2002). Not desirable for prosecutor to testify as witness on material point in case; any prosecutor expecting to testify on material point should recuse self. Mere fact that challenged testimony helps establish some matter on which prosecution bears burden of proof not necessarily render that testimony material or prejudicial to defendant.

d. Other Issues Related to Witnesses

UNAUTHORIZED PRACTICE OF LAW

VIOLATION OF RULES OF ETHICS/PROFESSIONAL RESPONSIBILITY, RELATIONSHIP TO FINDING OF MISCONDUCT AT TRIAL

• State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002). Court stated that not every improper closing argument necessarily constitutes violation of rules of professional practice and conduct, but that, a minimum, attorneys in North Carolina courts are expected to conduct themselves in accordance with such rules.
• Gibson v. State, 334 S.C. 515, 514 S.E.2d 320, 327 at n. 6 (1999). In context of Brady v. Maryland, 373 U.S. 83 (1963), violation, Court noted that use of term "misconduct" is not necessarily synonymous with misconduct as defined in ethical rules that govern lawyers.