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From Prosecuting Crimes to Defending the Accused: So You're Interested in Forging a Career in Criminal Law Thursday, March 13, 2014; 6:30 PM to 9:00 PM

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From Prosecuting Crimes to Defending the Accused: So You're Interested in Forging a Career in Criminal Law Thursday, March 13, 2014; 6:30 PM to 9:00 PM FROM PROSECUTING CRIMES TO DEFENDING NSTITUTE THE ACCUSED: SO I YOU’RE INTERESTED IN FORGING A CAREER IN CLE CRIMINAL LAW Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for March 13, 2014 Program Co-sponsor: NYCLA’s Young Lawyer’s Committee Faculty: Carrie Cohen, US Attorney's Office, SDNY; Brian King, Law Office of David S. Smith LLC; Robin McCabe, New York County District Attorney's Office; Asha Smith, Legal Aid Society; Rhonda Tomlinson, Ct. Attorney, NYS Unified Ct. System, Supreme NYCLA Court Criminal Term; Associate Adjunct Professor, John Jay College of Criminal Justice This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2.5 Transitional and Non-Transitional credit hours; 1 Ethics; 1.5 Professional Practice. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2.5 hours of total CLE credits. Of these, 1 qualifies as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey. Information Regarding CLE Credits and Certification From Prosecuting Crime to Defending the Accused: So You’re Interested in Forging a Career in Criminal Law Thursday, March 13, 2014 6:30 PM to 9:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646 From Prosecuting Crimes to Defending the Accused: So You're Interested in Forging a Career in Criminal Law Thursday, March 13, 2014; 6:30 PM to 9:00 PM Program Co-Sponsor: NYCLA's Young Lawyers Section Program Chair: Danyelle Shapiro, Keefe Bartels, LLC Faculty: Carrie Cohen, US Attorney's Office, SDNY; Brian King, Law Office of David S. Smith LLC; Robin McCabe, New York County District Attorney's Office ; Asha Smith, Legal Aid Society; Rhonda Tomlinson, Ct. Attorney, NYS Unified Ct. System, Supreme Court Criminal Term; Associate Adjunct Professor, John Jay College of Criminal Justice AGENDA 5:30 PM – 6:30 PM Registration 6:00 PM – 6:30 PM Networking Reception 6:30 PM – 6:45 PM Overview and Introduction of Panelists 6:45 PM – 7:45 PM Discussion 7:45 PM –7:55 PM BREAK 7:55 PM – 8:35 PM Discussion 8:35 PM – 9:00 PM Questions and Answers OUP UNCORRECTED PROOF – FIRST-PROOF, 08/16/12, NEWGEN Rule 3.8: Special Responsibilities of Prosecutors and Other Government Lawyers Rule 3 I. TEXT OF RULE 3.81 (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. II. NYSBA COMMENTARY [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 and that guilt is decided upon the basis of sufficient evidence. Applicable state or federal 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 Rule 8.4. A government lawyer in a criminal case is considered a “prosecutor” for purposes of this Rule. [2] A defendant who has no counsel may waive a preliminary hearing or other important pretrial rights and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. This would not be applicable, however, to an accused appearing pro se with the approval of the tribunal, or 1 Rules Editor Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns Center for Ethics in the Practice of Law, Benjamin N. Cardozo School of Law. The editor would like to thank Joanne Barken for her research assistance. 509 332_Ch03-8.indd2_Ch03-8.indd 550909 88/16/2012/16/2012 99:02:45:02:45 PPMM OUP UNCORRECTED PROOF – FIRST-PROOF, 08/16/12, NEWGEN to the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence. [3] The exception in paragraph (b) 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. [4] [Reserved.] [5] Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium against the accused. A prosecutor in a criminal case should make reasonable efforts to prevent persons under the prosecutor’s supervisory authority, which may include investigators, law enforcement personnel, employees, and Rule 3 other persons assisting or associated with the prosecutor, from making extrajudicial statements that the prosecutor would be prohibited from making under Rule 3.6. See Rule 5.3. Nothing in this Comment is intended to restrict the statements that a prosecutor may make that comply with Rule 3.6(c) or Rule 3.6(d). [6] Like other lawyers, prosecutors are subject to Rule 5.1 and Rule 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Prosecutors should bear in mind the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case, and should exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals. [6A] Reference to a “prosecutor” in this Rule includes the office of the prosecutor and lawyers affiliated with the prosecutor’s office who are responsible for the prosecution function. Like other lawyers, prosecutors are subject to Rule 3.3, which requires a lawyer to take reasonable remedial measures to correct material evidence that the lawyer has offered when the lawyer comes to know of its falsity. See Rule 3.3, Comment [6A]. [6B] The prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted. Accordingly, though not required by these Rules, when a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful.
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