Prosecutors’ Ethical and Constitutional Duties to Criminal Defendants: It’s Time to Reel in the Zeal

Prosecutors’ Ethical and Constitutional Duties to Criminal Defendants: It’s Time to Reel in the Zeal

When the police violate a person’s Fourth Amendment right, the Exclusionary Rule bars evidence resulting from that violation from being used against the person in trial. The rule is designed to deter police from engaging in illegal searches and seizures. Nevertheless, prosecutors often bring charges even when the initial police report and body-worn camera footage indicate the evidence resulted from a Fourth Amendment violation. In pursuing these charges, prosecutors jeopardize criminal defendants’ Fourth Amendment rights and ignore their roles as neutral ministers of justice.

In a case I worked on at a California county public defender’s office, a man—let’s call him Hector—was smoking in a park. An officer approached and told Hector he was violating an ordinance by smoking there. Hector then put his cigarette out on the ground, and the officer told him he was now violating another ordinance, littering. The officer asked for his identification, and Hector told him he did not have any on him. Hector verbally identified himself, but the officer could not find any matching records. Without consent, the officer searched Hector’s person to look for identification. The search yielded cocaine. The District Attorney’s office then filed charges against him for illegally possessing a controlled substance. Ultimately, our office was able to suppress this evidence by showing in a hearing that the officer discovered it during an illegal search.

If they had first applied the Exclusionary Rule, the prosecution would have had no grounds for bringing this case forward. No case law in California allowed the officer to search Hector for identification without a warrant. On the contrary, a California Court of Appeal for the Second District case held that a warrantless search to locate identification to issue a citation is not permitted. The prosecution obtained the officer’s body-worn camera before the hearing to suppress the evidence based on the Fourth Amendment violation, and that footage showed the officer searching Hector without a warrant, even though Hector was cooperating and did not appear armed or dangerous. Thus, a suppression hearing was unnecessary for the prosecution to determine that a Fourth Amendment violation took place.

A prosecutor is not merely an advocate, but according to the American Bar Association (ABA), she is also a “minister of justice,” meaning that she occupies a quasi-judicial position. Connected with the responsibility to be a “minister of justice,” both federal and state prosecutors take an oath to uphold the Constitution. Moreover, the ABA makes clear that prosecutors are supposed to seek justice “within the bounds of the law” and not merely obtain convictions at any cost. They are required to “respect the constitutional and legal rights of all persons, including suspects and defendants,” and to forego pursuing charges under appropriate circumstances. Moreover, ABA’s Model Rule 3.8(a) states that a prosecutor should refrain from bringing criminal charges if she knows they are not backed up by probable cause. Under this rule, prosecutors have “specific obligations to see that the defendant is accorded procedural justice,” and to ensure that “guilt is decided upon the basis of sufficient evidence.” The prosecutors’ special duties may require them “to undertake some procedural and remedial measures as a matter of obligation” to protect defendants’ rights.

Prosecutors play an adversarial role that conflicts with that of a “minister of justice.” These clashing roles complicate prosecutors’ ethical duties. An important question is under what circumstances prosecutors should play the role of a “zealous advocate,” pursuing convictions, versus that of a neutral “minister of justice.” Because criminal defendants’ Fourth Amendment rights are institutionally underenforced, some legal scholars, including Professor Fish and Professor Gold, have proposed that prosecutors adopt a quasi-judicial focus when a person faces charges due to a Fourth Amendment violation and act to defend the Constitution neutrally.

The remedy for police violations of the Fourth Amendment is the Exclusionary Rule, which merely excludes evidence gathered due to the government’s illegal conduct from being used at trial. When defense counsel brings a Fourth Amendment violation to a judge’s attention, judicial suppression does not necessarily follow. For example, in United States v. Leon, the Supreme Court held that there is a “good faith” exception to the Exclusionary Rule; that is, when an officer reasonably and in good faith relied on a facially valid search warrant, the evidence will not be subject to the Exclusionary Rule, even if the warrant is later determined to be defective. Moreover, prosecutors have absolute immunity for their decisions and cannot be sued under §1983. While police officers can be held liable under §1983, such lawsuits are overwhelmingly unsuccessful because officers have qualified immunity in addition to other procedural and structural barriers. Because the remedy is so limited, the Fourth Amendment right goes underenforced.

Although defense attorneys must raise defendants’ Fourth Amendment rights when they are violated, public defenders face excessive caseloads and resource constraints. As a result, public defenders may fail to fight adequately for the suppression of unconstitutionally acquired evidence. Additionally, in many instances, cases end in guilty pleas before suppression motions have been filed. In fact, prosecutors can even design plea deals to expire or worsen if a defendant moves to suppress evidence, deterring the defense from raising violations of their clients’ Fourth Amendment rights in those cases.

Prosecutors play an important role in regulating police action. Prosecutors understand the law in a way that police officers do not, and they should train officers on how to perform their duties in conformance with the law. When they refuse to use unlawfully gained evidence, prosecutors signal to officers that Fourth Amendment violations waste time and have consequences. Here, the prosecution should have condemned the violation and refused to bring the charges forward.

In Hector’s case, the Fourth Amendment violation was blatant because the officer searched his person without a warrant and without any indication that Hector was armed or dangerous. When the prosecutor pressed charges, he knew, or should have known, that the police officer obtained this evidence in violation of the Fourth Amendment. Without the unconstitutionally obtained evidence, the prosecutor would not have had “sufficient evidence” to support “probable cause.” Therefore, under the Model Rules, the prosecution should not have brought these charges.

Because prosecutors have a special duty to defend the Constitution and the procedural rights of criminal defendants, prosecutors should moderate their adversarial zeal by not pressing charges or dropping those charges when evidence is the result of a Fourth Amendment violation. In this case, the Model Rules suggested that the prosecution’s decision to move forward was improper because they lacked sufficient legally acquired evidence to support probable cause. In refusing to bring such charges, prosecutors both enforce their own oath to the Constitution and promote constitutional police action.

In Hector’s case, though the prosecution certainly sought conviction with zeal, they neglected their duty to uphold his constitutional rights. Unfortunately, prosecutors’ adversarial role is commonly overemphasized, overshadowing their obligation to uphold the Constitution. It is time for prosecutors to reel in the zeal and work to safeguard criminal defendants’ constitutional rights.

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