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"The Right Thing" Ethical Guidelines for Prosecutors (updated Fall 2012)

"Court Notices" Amendment of Rule 3.8




The office of District Attorney, under the Constitution and laws of New York State, is an elected position. District Attorneys must regularly submit their record of performance to the electorate. The District Attorney is therefore involved directly in the political process. Thus, it is reasonable and proper for District Attorneys and members of their staffs to engage in activities that do not compromise their office's efficiency or integrity or interfere with the professional responsibilities and duties of their offices.

District Attorneys may engage in the following conduct:

1. Register to vote themselves, and vote.

2. Have membership in a political party.

3. Contribute money to political parties, organizations and committees.

4. Attend political/social events.

5. Participate in community and civic organizations that have no partisan purposes.

6. Sign political petitions as an individual.

7. In order to demonstrate public support for the nonpartisan nature of the District Attorney's office, a District Attorney should consider accepting endorsement of more than one political party when running for office.

8. District Attorneys are entitled to criticize those policies that undermine public safety and support those policies that advance it, by freely and vigorously speaking out and writing on criminal justice issues and the individuals involved in those issues.

District Attorneys and Assistants shall not:

1. Be a member or serve as an official of any political committee, club, organization or group having a political purpose.

2. Endorse candidates, except that Assistant District Attorneys shall be permitted to engage in political activity in support of the re-election of the District Attorney by whom they are employed.

3. While attending a political/social function, District Attorneys or Assistant District Attorneys shall not speak at such functions; they shall not publicize their attendance at such functions; nor shall they act in a manner which could be interpreted as lending the prestige and weight of their office to the political party or function. However, this shall not prohibit normal political activity during the course of a campaign year.

4. Coerce or improperly influence any individual to make a financial contribution to a political party or campaign committee or to engage in political activities.

5. Except as otherwise provided, engage in any political activity during normal business hours or during the course of the performance of their official duties or use office supplies, equipment, facilities or resources for political purposes.

6. Misuse their public positions for the purpose of obstructing or furthering the political activities of any political party or candidate.

The above activities are reasonable and ethical, and are consistent with the impartiality of the District Attorney's office. The above activities should also help District Attorneys maintain a sense of public confidence in the non-partisan nature of the District Attorney's office. Such conduct also guarantees the constitutional rights of prosecutors and their assistants in the exercise of their elective franchise. Candidates for the office of District Attorney shall abide by these rules.

Rules of Professional Conduct As Issued By The New York State Unified Court System

The entire Rules of Professional Conduct as issued by the New York State Unified Court System can be found here.

RULE 3.8:
Special Responsibilities of Prosecutors and Other Government Lawyers
(a) A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a criminal charge when the prosecutor or other government lawyer knows or it is obvious that the charge is not supported by probable cause.

(b) A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.

Committee on the Fair and Ethical Administration of Justice

In July 2009 , the Board of Directors unanimously voted to implement a new committee, the Fair and Ethical Administration of Justice Committee, in order to thwart wrongful convictions and improve prosecutorial procedures. Spearheaded by Onondaga County District Attorney William Fitzpatrick, the Committee recognizes that DAASNY is particularly situated to provide a forum to address the issues raised by the rare wrongful conviction. The Fair and Ethical Administration of Justice Committee’s mission is to promote the highest standards of prosecution by highlighting and evaluating best practices, disseminating and reviewing ethical issues, and assisting peer offices in the evaluation of difficult cases. The Committee is composed of 13 appointed district attorneys and their assistants from across the state and meets bi-annually. Three subcommittees meet on a regular basis and report back to the Committee: Best Practices and Procedures, Ethics, and Mutual Assistance.

To encourage innovation, the Best Practices and Procedures Subcommittee shares effective programs from around the state and examines practices in other jurisdictions to determine whether they would be successful in New York. The Subcommittee reviews all proposals related to minimizing the likelihood of wrongful convictions.

Comprised of assistants from around the state, the Ethics Subcommittee reviews and comments on opinions bearing on legal ethics, organizes ethics trainings, analyzes proposed rules and legislation, and makes recommendations to DAASNY.

The Mutual Assistance Subcommittee is made up of experienced assistant district attorneys throughout the state who are available to assist in re-investigating any case in which a defendant has filed a post-judgment motion raising a colorable claim of actual innocence when that defendant remains incarcerated pursuant to the challenged judgment. Upon the conclusion of the re-investigation the designated assistant will report the factual findings to the District Attorney of the requesting county. A final report will be remitted to the Committee. If the investigation identifies issues that could inhibit the fair and ethical administration of justice, the Committee will refer these concerns to the Best Practices or Ethics Subcommittee for consideration and recommendation.

Until now, too much of the debate on wrongful convictions and actual innocence has been framed around an incorrect assumption – that wrongful convictions happen frequently. Indeed, when the New York State Bar Association Task Force on Wrongful Convictions examined the issue, over a 40-year period, 1973-2004, they could only find 50 defendants. Moreover, the report made no claim that all of these defendants were actually innocent. In this same time frame, there were 1,224,702 felony convictions in New York State. Wrongful convictions made up 0.004082% of all convictions.

The Fair and Ethical Administration of Justice Committee is just one way DAASNY is working toward improving procedures and making wrongful convictions even rarer than they already are. DAASNY, represented by President Derek Champagne, Franklin County District Attorney, is also participating in the Justice Task Force, formed by Chief Judge Jonathan Lippman.


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