Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall: (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. (f) When a prosecutor knows of new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall, unless a court authorizes delay, (1) if the conviction was obtained in the prosecutor’s jurisdiction: 77 (i) promptly disclose that information to: (A) the defendant; (B) the defendant’s counsel, or if there is none, the indigent defense appointing authority in the jurisdiction, if one exists; (C) the tribunal in which the defendant’s conviction was obtained; and (D) a statewide entity that examines and litigates claims of actual innocence. (ii) if the defendant is not represented by counsel, or if unable to determine whether the defendant is represented by counsel, move the court in which the defendant was convicted to determine whether the defendant is indigent and thus entitled to the appointment of counsel. (iii) cooperate with the defendant’s counsel by providing all new information known to the prosecutor as required by the relevant law governing criminal discovery. (2) if the conviction was obtained in another jurisdiction, promptly disclose that information to the appropriate prosecutor in the jurisdiction where the conviction was obtained. (g) A prosecutor who concludes in good faith that information is not subject to disclosure under paragraph (f) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous. (h) In paragraph (f), unless the context indicates otherwise, “jurisdiction” means the legal authority to represent the government in criminal matters before the tribunal in which the defendant was convicted. Comment: Source and Scope of Obligations 1. A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate. A prosecutor should not initiate or exploit any violation of a suspect’s right to counsel, nor should he initiate or encourage efforts to obtain waivers of important pretrial, trial, or post-trial rights from unrepresented persons. A prosecutor is obliged by this rule to take reasonable measures to see that persons employed or controlled by him refrain from making extrajudicial statements that are prejudicial to the accused. See also Rule 3.03(a)(3), governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of