The Prosecutor
THE PROSECUTOR
TABLE OF CONTENTS
1. The Role of the Prosecutor
2. Prosecutor's Duty to Ensure Impartiality
3. Comparison with Disciplinary Rule and Model Rule
4. Charges Supported by Probable Cause
5. Advice Regarding Right to Counsel
6. Waiver of Post-Indictment Rights
7. Evidence
8. Fair Comment During Argument and Questioning
9. Private Prosecutors
A prosecutor's Duty before the grand jury is to present the evidence and explain the law, thereby assisting the grand jury in accomplishing its purpose, which stated is:
(1) to ensure that persons will be brought to trial only if a reasonable basis for the charge exists; and
(2) to ensure that those brought to trial will be adequately informed of the charges against them.
In a typical situation, a complaint that has been forwarded to the grand jury( realistically the Prosecutors office) after the probable cause hearing should be initially reviewed by an assistant prosecutor to determine if additional investigation is necessary or whether, in the particular case, administrative action or some other alternative to prosecution is appropriate. After thoroughly reviewing the entire file and determining that the matter should be presented to the grand jury, the assistant Prosecutor must decide whether witnesses should be called before the grand jury. The witnesses will testify to matters the assistant prosecutor thinks necessary for a proper understanding of the charges made and also will present sufficient evidence to sustain the charge. As a practical matter, the number of witnesses is partly controlled by the time available and the number of cases that the grand jury must hear on a given day. This is not to say that a particularly complex case should be inadequately presented because of lack of time. Time must be taken to accommodate those cases where extended testimony is necessary to give the grand jury a complete understanding of the charge and the defendant's involvement or lack of it in the crime. A survey of New Jersey prosecutors indicates that, almost without exception, prosecutors' offices in the state are committed to placing experienced and capable lawyers in charge of the grand jury. This experience is put to good use in deciding the quantity of testimony necessary for the grand jury's knowing evaluation of a case, the context of the examination of witnesses, and the charges ultimately included in the indictment. Of course, it is within the grand jury's authority to call for additional witnesses that they may wish to hear in a particular case. Toward that end, the Prosecutor should remind them of that prerogative. The Prosecutor may also determine that the potential defendant or Target should, at least, be offered the opportunity to testify on his own behalf. This situation may arise in several circumstances, among them being the neighbor-type dispute, domestic or inter-family quarrel, or those instances where there is a suspicion that the complainant possibly has improper motives for signing the complaints. The target himself may initiate a request to be heard by the grand jury; the Prosecutor may grant such a request if the ends of Justice require it or to ensure a complete presentation of the matter to the grand jury.
Whether the defendant chooses to testify or not, the Prosecutor presenting the case may have or receive evidence from the target that would tend to exculpate the target. It is axiomatic that if reliable, exculpatory evidence exists, the prosecution is not likely to sustain its burden of proof before a petit jury, and therefore, submission of such evidence to the grand jury would be warranted. However, care must be taken not to present a trial of the issue before the Grand jury and certainly not to create an adversary hearing of any variety. It is therefore recommended that, in the ordinary case, evidence offered by the defense( other than through the testimony of the target of the investigation) be submitted to the grand jury only when there is a clear indication that the target would be exonerated thereby.
In presenting the typical criminal complaint to a grand jury, it is necessary at the outset for the Prosecutor to say a few words about the complaint. He should set the scene for the grand jurors by spelling out the charge or charges, including the elements that would assist the jurors in considering the facts and the witnesses to be called. In more complex cases, a brief explanation of the anticipated testimony may be of assistance. While in no way expressing an opinion nor urging a point of view, a prosecutor should prepare the grand jurors with the factual background necessary for what they are about to hear by making the testimony meaningful. In examining the witnesses before the grand jury, it is imperative that questions be concisely and stated to elicit answers that are relevant and clearly within the understanding of the grand jurors. It is well to remember that grand jurors have varied educational backgrounds, comprise many occupational levels, and range in age from 18 to 70. They bring to their duties their life experiences also their preconceived ideas of the criminal justice system, often gleaned from television and other public media. Also, it should be kept in mind that while the Prosecutor examining the witness has had the benefit of reading all the reports in the case, perhaps more than once, the grand jurors are hearing the testimony for the first time and performing the difficult task of placing the testimony that they hear into the overall framework of the case. In this area, the experienced Prosecutor can, while maintaining an objective stance, be of immeasurable assistance to the grand jury in fulfilling its function. Witnesses' examination should be brief, concentrating on the elements that must be shown to establish a prima fascia case. Leading questions are often necessary and entirely proper to assure that the witness keeps to relevant issues and to handle expeditiously matters presented to the Grand jury.
Occasionally, it will be necessary to cross-examine a witness. Normally, such an approach is required (1) when there is an obvious inconsistency between the witness's testimony before the grand jury and his prior statements, (2) When the witness's story is unlikely, (3) when there is a conflict in testimony between Witnesses; (4) when the witness appears evasive or hostile: or (5) when there appears to be a strong probability that the witness is not being truthful. The Prosecutor must elicit the truth from the witness appearing before the grand jury; probing examination is therefore essential when it is suspected that a witness is less than honest or forthright.
After the Prosecutor has concluded his examination of the witness, the grand jurors should be questioned to determine if they have any questions to put to the witness. Our survey of the Prosecutor's offices throughout the state found two methods of dealing with grand jurors' questions. Both methods are acceptable. As a matter of practice, the Prosecutor should consider the merits of both and make his decision accordingly. The first method permits the grand jury to ask the witness questions directly. Utilizing this procedure requires that the Prosecutor be on his guard to cut off an improper question,i.e., "Have you ever arrested this man before, officer?"; "Does the defendant have a prior record?" in short, there is no prior determination by Counsel as to the propriety and relevance. Suppose an improper question is asked and answered before the assistant Prosecutor can interrupt. In that case, the only thing to be done is to instruct the jury on the record to disregard the answer and not to consider it in their deliberation.
The second method requires that the witness leave the jury room and have the prosecutors and their grand jurors screen the questions before being asked of the witness to avoid improper queries and, more importantly, improper responses. : (1) There is always the possibility that irrelevant or improper inquiries could harm an investigation or prosecution; (2) the time consumed by irrelevant and repetitious questions could interfere with the work of the grand jury. It is the responsibility of the Prosecutor to help the jury discipline itself to limit the questioning of witnesses to pertinent matters.
After all the witnesses have been examined and have left the grand jury room, the assistant Prosecutor May fairly and impartially summarize the evidence and explain the testimony with reference to the law of the case. For instance, if the charge is armed robbery and there has been testimony that the weapon employed is a toy gun, the grand jurors must be given a brief and simple explanation that the law permits a charge of armed robbery even though the gun was not, in fact, operable, nor capable of inflicting injury. Similarly, it may be necessary to read the statute on robbery to put the testimony regarding the fear that the victim felt( or lack of it) in the proper perspective. Although Grand jurors gain some slight expertise in the law over a period of months and a superficial knowledge of the applicable criminal statutes, they are still lay people who have little or no training in the law, or in how the law relates to the facts presented to them. It is the Prosecutor's obligation to explain these matters to them with simplicity and clarity. A draft indictment may be prepared beforehand to relate the testimony to each possible charge in complex cases. Of course, the assignment judge is available to the Grand Jury for instruction independent of the Prosecutor, and the grand jury should be reminded of that from time to time. However, as a practical matter, it is generally not feasible to transport the grand jury to the court after they have heard evidence in each case. Therefore, it is incumbent upon the assistant Prosecutor to gain the grand jury's Collective confidence in his judgment, honesty, good faith, and fairness. Adequate preparation by the Prosecutor is an absolute necessity for achieving this desired rapport.
The Prosecutor's role before the grand jury is not easily defined." there is no impropriety in the Prosecutor assisting in the investigation and examination of witnesses; in advising the grand jury as to the admissibility of evidence and the proper mode of procedure and in explaining the testimony with reference to the law of the case… "he may not [ however] participate in its deliberations, or Express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the grand jury in its findings… [ that is, toward the return of an indictment]." State v. Hart, 139 N.J. Super. 565, 567-568 (App. Div. 1976).
While the broad pronouncements quoted above appear to apply without variation, there are numerous situations in which additional information within the knowledge of the Prosecutor should be brought to the grand jury's attention to ensure that Justice is done. The following is a partial list of those situations:
The Prosecutor has reasonable doubt that the accused is, in fact, guilty;
- the extent of the harm caused by the offense;
- the disproportion of the authorized punishment in relation to the particular offense or the offender;
- possible improper motives of a complainant;
- the prolonged non-enforcement of a statute, with Community acquiescence;
- the reluctance of the victim to testify;
- cooperation of the accused in the apprehension or conviction of others;
- availability and likelihood of prosecution by another jurisdiction.
(Attorney General's Formal Opinion: F.O. No. 11-1976)
In short, a prosecutor may recommend a "no bill" when Justice is required. In some cases, substantial Justice will best be achieved by a remand of the matter to the Municipal Court; the Prosecutor should be prepared to discuss the possible penalties and consequences of such a remand in the event of a "no bill". There is no doubt of the impropriety of a prosecutor who influences the grand jury to indict when there is lack of evidence to support such an indictment. State v. Hart, supra; * State v. Ferrante, 111 N.J. Super. 229, 304-306 (App. Div. 1970). However, it is equally clear that in the rare case when a grand jury votes not to indict and the Prosecutor is convinced that a real and obvious miscarriage of Justice has thereby occurred, the Prosecutor should not hesitate to seek to re-present the matter to another grand jury. In short, the Prosecutor must be guided by the dictates of Justice, with recognition of the deference given his position by the jurors and the influence his comments might have. Cf. State v. Farrell, 61 N.J. 99 (1972).
* "Contrary To the practice in some states, New Jersey rules permit the Prosecutor not only to present before the grand jury to question witnesses but also during deliberations to advise on the law and its application to the facts in the case. R. 3:6-6(a). Although he should not attempt to influence or direct the grand jury in its findings, he is not expected to limit his participation to an innocuous presentation. There is no legal bar to vigorous and skillful questioning that will elicit and compel truthful responses from reluctant witnesses. See, e.g., United States v. Rintelen , 235 F. 787, 791 (S.S.N.Y. 1916.); State v. Schamberg, __ N.J. Super. ___ (App. Div. 1977). In Schamberg, the court distinguished the heart decision based upon the fact that the Prosecutor did not make a comment to induce the grand jury to indict but rather used it as a means of urging the witness to tell the truth by confronting him with the possibility that his testimony as given was perjured.
See Corrente v. Corrente, supra, 281 N.J.Super. at 247-250, 657 A.2d 440 (explaining that the Act was designed to address "regular serious abuse" and not "ordinary domestic contretemps").
Cesare v. Cesare, 302 N.J. Super. 57, 66, 694 A.2d 603, 608, 1997 N.J. Super. LEXIS 277, *13, 82 Fair Empl. Prac. Cas. (BNA) 513
Prosecutor's Duty to Ensure Impartiality
Generally.
RPC 3.8, entitled "Special Responsibilities of a Prosecutor," imposes a number of obligations on prosecuting attorneys:
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important post-indictment pretrial rights, such as the right to a preliminary hearing; and
(d) make timely disclosure to the defense of all evidence 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.
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) either the information sought is not protected from disclosure by any applicable privilege or the evidence sought is essential to an ongoing investigation or prosecution; and (2) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
The New Jersey Supreme Court amended this rule in several respects in 2004. First, the Court specified in subsection (c) that a preliminary hearing is one of the important post-indictment rights protected by the rule. In subsection (d), the Court substituted the phrase "tends to negate the guilt of the accused" for the "supports innocence" formulation of the 1984 rule. Finally, the Court adopted subsections (e) and (f), which had been added to the Model Rule subsequent to the Court's initial consideration of it in 1984.
The Supreme Court has also referred on occasion to "the special ethical rules governing prosecutors" in the context of improper statements to the jury and improper pretrial publicity. See State v. Frost, 158 N.J. 76, 89 (1999); State v. Rose, 112 N.J. 454, 509 (1988); State v. Ramseur, 106 N.J. 123, 323 (1987); State v. Biegenwald, 106 N.J. 13, 40 (1987). See also State v. Watson, 224 N.J. Super. 354, 363 (App. Div. 1988), certif. den. 111 N.J. 620 (1988), citing Ramseur as authority for the existence of these special rules. None of these cases, however, involves a violation of RPC 3.8, the only RPC provision that applies specifically to prosecutors; rather, these cases are more properly characterized as violations of RPC 3.4(e) or RPC 3.6, which apply to all lawyers, not only to prosecutors. See State v. Ruffin, 371 N.J. Super. 371, 387 (App. Div. 2004) ("prosecutor has ethical obligations that extend beyond other attorneys.").
The "special rule" involved in all of these decisions is the principle underlying RPC 3.8: prosecutors have a primary duty to see that justice is done, not merely to convict. See State v. Garcia, 245 N.J. 412, 435 (2021); State v. McNeil-Thomas, 238 N.J. 256, 274-275 (2019); State v. R.B., 183 N.J. 308, 332 (2005); State v. Smith, 167 N.J. 158, 177 (2001); State v. Frost, 158 N.J. at 83; State v. Loftin, 146 N.J. 295, 386 (1996); State v. Marshall, 123 N.J. 1, 152 (1991); State v. Ramseur, 106 N.J. at 320. Accord, State v. Negron, 355 N.J. Super. 556, 575-576 (App. Div. 2002); State v. Tilghman, 345 N.J. Super. 571, 575-576 (App. Div. 2001); State v. Allen, 337 N.J. Super. 259, 267 (App. Div. 2001), certif. den. 171 N.J. 43 (2002); State v. Sosinski, 331 N.J. Super. 11, 21 (App. Div.), certif. den. 165 N.J. 603 (2000); State v. Torres, 328 N.J. Super. 77, 94 (App. Div. 2000); State v. Millett, 272 N.J. Super. 68, 90 (App. Div. 1994); State v. Watson, 224 N.J. Super. at 363. In Torres, the court stated:
[P]rosecutors have ethical obligations beyond those of other attorneys.... A prosecutor is not simply another lawyer who happens to represent the State. Because of the overwhelming power vested in his office, his obligation to play fair is every bit as compelling as his responsibility to protect the public.
Torres, 328 N.J. Super. at 94; State v. Triestman, 416 N.J. Super. 195, 205 (App. Div. 2010) ("Imbued with principles of fairness by the Rules of Professional Conduct and case law, a prosecutor has the primary duty of ensuring that justice is done and may not use improper methods calculated to produce a wrongful conviction."). Accord, State v. Harvey, 176 N.J. 522, 529 (2003); State v. Carreker, 172 N.J. 100, 115 (2002); State v. Ruffin, 371 N.J. Super. 371, 387 (App. Div. 2004); State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). See also Berger v. United States, 295 U.S. 78, 88 (1935), the apparent origin of the views expressed in these cases. And see ABA Model Rules of Professional Conduct Rule 3.8 comment (2000), stating that a prosecutor has a specific obligation "to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." The prosecutor's "fair play" obligation is heightened in capital cases. See State v. Harvey, 176 N.J. at 529; State v. Koskovich, 168 N.J. 448, 489 (2001); State v. Williams, 113 N.J. 393, 447-448 (1988).
As part of the "procedural justice" obligation, a prosecutor has a duty to recognize the trial judge's authority to control the progress of a case. In State v. Ruffin, 371 N.J. Super. at 387-388, the prosecutor refused to proceed with a trial when the judge denied a stay to allow an appeal of an evidentiary ruling adverse to the State. The court criticized the prosecutor's conduct and referred the matter to the Attorney General for further action:
Whether based on ignorance, intransigence or insolence, the refusal of the prosecutor to proceed was clearly wrong and subject to discipline.... A criminal trial is not a game, and the courtroom is not a ball field where the prosecutor may pick up his bat and glove and go home if he does not like the ruling of the umpire. The power and responsibility for the conduct, control and disposition of criminal trials resides in the trial judge, not the prosecutor.
And see N.J. Advisory Comm. on Professional Ethics Op. 661 (May 18, 1992), observing that RPC 3.8 "expands upon a prosecutor's `Special Responsibilities' and details certain active steps a prosecutor must take to ensure fair treatment of defendants." In that opinion, the Committee relied on "the spirit of RPC 3.8" to prohibit a municipal prosecutor from requiring a defendant in a criminal, quasi-criminal, or motor vehicle matter to acknowledge in writing, as a condition precedent to a plea bargain, that the police officer involved in the arrest used only "reasonable and necessary" force. The Committee observed that "neither fairness nor logic dictates that a defendant should be bound by his untutored perception of whether `reasonable and necessary force' was used," and characterized such a requirement as "the antithesis of insuring that justice is done."
See also N.J. Comm. on Unauth. Pract. Op. 34 (May 3, 1999), relying in part on RPC 3.8 to preclude non-attorney security personnel employed by retail stores from serving as private prosecutors in municipal courts. The Committee reasoned that a non-attorney private prosecutor "may not be aware, capable of, or interested in carrying out" the duties imposed by RPC 3.8.
In addition to RPC 3.8, all of the other RPCs governing the activities of an attorney as an advocate are applicable to prosecutors as well as to attorneys in private practice. See State v. Martinez, 461 N.J. Super. 249, 289-293 (App. Div. 2019), reviewing ABA opinions and the ABA Prosecution Standards as they related to prosecutors' authorization of a surreptitious recording of an interview between defense counsel and a confidential informant used by the State in a drug prosecution based on the belief that the attorney would attempt to bribe the informant. The court ultimately concluded that the recording violated defense counsel's work product privilege, which could assist the prosecution in preparing the case, and that the State should have used an independent prosecutor to investigate any wrongdoing by defense counsel. The court held that the State's failure to set up a screen warranted transfer of the case to a prosecutorial team that had not been exposed to the recording or transcription of the interview.
All of the rules applicable to prosecutors generally are, of course, applicable to municipal prosecutors. See State v. Hessen, 145 N.J. 441, 449-454 (1996), discussing the State Supreme Court's authority to regulate municipal prosecutors. See In re Segal, 130 N.J. 468, 482-483 (1992), finding that a municipal prosecutor who failed to make any preparations for a complex trial was grossly negligent in violation of RPC 1.1(a), and had failed to represent his client, the State, diligently, in violation of RPC 1.3. Compare State v. Roper, 362 N.J. Super. 248, 253 (App. Div. 2003), criticizing a county prosecutor's failure to respond to a defendant's contention in a petition for post-conviction relief as "unprofessional and beneath the dignity of a public prosecutor charged with seeing that justice is done." Because the issue in the case was one of first impression in New Jersey, the prosecutor presented no argument, expressly deferring to the "discretion of [the appellate] court." The Appellate Division characterized this approach as a "blatant disregard" of the spirit of the Court Rules, which require a factual and legal reply to every issue raised by an appellant.
Note that the substantive law of criminal procedure also imposes a vast array of obligations on prosecuting attorneys. See, e.g., Batson v. Kentucky, 476 U.S. 79, 84 (1986), reaffirming that a prosecutor may not exercise peremptory challenges of jurors on the basis of race; Oregon v. Kennedy, 456 U.S. 667, 675-676 (1982), ruling that a prosecutor may not subvert a defendant's double jeopardy protection by "goading" the defendant into seeking a mistrial. See also State v. Allen, 337 N.J. Super. 259, 268 n.6 (App. Div. 2001), certif. den. 171 N.J. 43 (2002), indicating that the trial judge had considered reporting the prosecutor to the District Ethics Committee for a violation of State v. Gilmore, 103 N.J. 508 (1986), which also relates to racial bias in jury selection. And see State v. Fuller, 182 N.J. 174, 199-201 (2004), relying on Gilmore in refusing to permit the use of preemptory challenges by the prosecutor against jurors who were demonstrably religious.
Note, as well, that the prohibition against "prosecutorial vindictiveness" is also intended to advance many of the same interests protected by RPC 3.8. See generally State v. Gomez, 341 N.J. Super. 560, 571-574 (App. Div.), certif. den. 170 N.J. 86 (2001), discussing United States v. Goodwin, 457 U.S. 368 (1982) and Blackledge v. Perry, 417 U.S. 21 (1974). This prohibition, a due process concept, provides a check on the prosecutor's "great discretion and power particularly in the charging function." Gomez, 341 N.J. Super. at 571. The doctrine is intended to prevent a prosecutor's retaliation against a defendant for the exercise of a legal right.
The "special obligation" to do justice does not insulate the prosecutor from adverse employment consequences. See Garcetti v. Ceballos, 547 U.S. 410 (2006).
Comparison with Disciplinary Rule and Model Rule.
Subsections (a) and (d) of RPC 3.8 are comparable to DR 7-103, which provided as follows:
(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he believes that the charges are not supported by probable cause.
(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, 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 punishment.
(See also online Appendix C for the full text of all Disciplinary Rules.) The primary differences between the DR and the RPC are RPC 3.8(a)'s use of the term "knows" rather than "believes," and the fact that RPC 3.8 applies to all prosecutors, not only to public prosecutors and government lawyers. For a discussion of some of the issues raised by private prosecutions, see State v. Storm, 141 N.J. 245 (1995) and 31:5-8. In addition, unlike DR 7-103(B), RPC 3.8(d) authorizes the nondisclosure by the prosecution of privileged information or material subject to a protective order. See Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 15 (available online at Appendix D). RPC 3.8(d) also requires disclosure of sentencing-related evidence to the tribunal, subject to the same exceptions. There were no Disciplinary Rule provisions corresponding to RPC 3.8(b) and (c).
When the Supreme Court adopted RPC 3.8 in 1984, it modified subsection (c) of the Model Rule to apply only to waivers of post-indictment pretrial rights. The Court believed that this would conform more closely to existing decisional law and that the focus of the rule should be on "those circumstances in which the right to counsel attaches as a matter of law or request." Comment to RPC 3.8, 114 N.J.L.J., July 19, 1984, supp. at 10 (available online at Appendix A-2). The Court also stated, "[p]reindictment consent to search or interrogation does not invoke the same Sixth Amendment concerns. Limiting ethical proscription to the waiver of post-indictment pretrial rights such as Wade hearings or discovery will accord with a lawyer's general duty to an unrepresented adversary." Id. In 2004, the Court decided to retain the "post-indictment" limitation in subsection (c). See Supreme Court Comment on RPC 3.8 (Appendix A-1).
Prior to 2000, the Model Rule 3.8(e) outlined a prosecutor's duty to prevent improper extrajudicial statements by subordinates:
The prosecutor in a criminal case shall:
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
ABA Model Rules of Professional Conduct Rule 3.8(e) (1989). There was no comparable provision in New Jersey, although RPC 5.3(b), applicable to nonlawyers employed or retained by or associated with a lawyer, required that a lawyer make reasonable efforts to ensure that a nonlawyer assistant's conduct was compatible with the professional obligations of the lawyer. See also State v. Sanchez, 129 N.J. 261, 278 (1992), citing Model Rule 3.8(e) with approval, although acknowledging that it was not part of the original RPC 3.8. Subsequently, during the Ethics 2000 revision, the ABA moved the substance of the old Model Rule 3.8(e) into Model Rule 3.8(f). New Jersey adopted Model Rule 3.8(f) in 2004.
In 1990, the ABA adopted Model Rule 3.8(f) (now Rule 3.8(e)), governing the authority of a prosecutor to call an attorney as a witness against a past or present client. The ABA subsequently amended that rule to restrict a prosecutor's ability to subpoena a lawyer to situations in which the information sought is essential to a successful prosecution, not protected from disclosure from any applicable privilege, and not available from any feasible alternative source. This provision was redesignated as Model Rule 3.8(e) during the Ethics 2000 revision. New Jersey adopted a modified version of Model Rule 3.8(e) in 2004. The New Jersey RPC consolidates subsections (e)(1) and (e)(2) of the Model Rule into a single subsection (e)(1), and requires only that the information sought be essential to an ongoing investigation or prosecution, rather than to the successful completion of an investigation or prosecution. See 2004 Supreme Court Comment on RPC 3.8 (Appendix A-1).
In August 1994, the ABA added Model Rule 3.8(g), prohibiting prosecutors from making extrajudicial statements likely to heighten public condemnation of an accused, except under limited circumstances. The ABA redesignated this provision as Model Rule 3.8(f) during the Ethics 2000 revision, adding to it the material previously included in the 1989 version of Model Rule 3.8(e). As discussed above, New Jersey adopted the reconstituted Model Rule 3.8(f) in 2004.
Charges Supported by Probable Cause.
In Advisory Comm. Op. 661 (May 18, 1992), the Committee found that a municipal prosecutor would be in violation of RPC 3.8(a) if the prosecutor conditioned the acceptance of a plea bargain on the defendant's written acknowledgment that the police officer involved had probable cause to make the arrest and to charge the defendant with the offenses alleged in the complaint. The Committee reasoned that such an acknowledgment could not be used to "relieve the prosecutor improperly of the obligation to ascertain the existence of probable cause" or to "enhance law enforcement's position unfairly." The Committee also stated that even if probable cause existed in the opinion of the prosecutor, requiring the defendant's acknowledgment would be improper and irrelevant to the purposes of a plea bargain. Finally, the Committee noted that proceeding with a trial when probable cause is absent would constitute a clear violation of RPC 3.8(a).
And see State v. Klemmer, 237 N.J. Super. 32, 36 (Law Div. 1989), indicating that RPC 3.8(a) imposes on a prosecutor an obligation of fairness and a duty to see that justice is done.
See also State v. Storm, 141 N.J. 245, 253 (1995), noting that a private prosecutor's relationship with a complainant in a related civil matter may affect his or her assessment of probable cause in a municipal court prosecution; Advisory Comm. Op. 690 (July 17, 2000), prohibiting a member of the State Police from serving as a municipal prosecutor anywhere in New Jersey, in part because the public might believe that the trooper would be unable to assess independently the probable cause determinations made by local police officers; Advisory Comm. Op. 672 (Apr. 5, 1993), precluding a municipal police officer from serving simultaneously as municipal prosecutor because her relationships with other officers in the municipality might conflict with her duty to evaluate independently whether each charge was supported by probable cause.
Cf. In re Norton, 128 N.J. 520, 538-540 (1992), disciplining a municipal prosecutor who failed to inform the court that there was good cause to proceed with a drunken driving prosecution even though the arresting police officers had declined to testify in the case. Similarly, in In re Whitmore, 117 N.J. 472, 476 (1990), the Court reprimanded a municipal prosecutor who allowed a DWI case to be dismissed because of the absence of the officer who operated the breathalyzer when he knew that the officer's motive in failing to appear was to subvert an otherwise proper prosecution.
Advice Regarding Right to Counsel.
RPC 3.8(b) requires that a prosecutor take reasonable steps to ensure that an accused has received advice regarding his or her right to counsel at all stages of the proceedings against him or her, as well as a reasonable opportunity to obtain counsel. See generally State v. Sanchez, 129 N.J. 261 (1992), describing an accused's pre-indictment and post-indictment rights to counsel under the Fifth Amendment, the Sixth Amendment, and the New Jersey State Constitution. In particular, Sanchez focused on the distinction between the pre-indictment right to counsel and the post-indictment right. See id. at 276-277.
See also State v. Reed, 133 N.J. 237, 268 & n.1 (1993), concluding that a prosecutor violated RPC 3.8(b) by refusing to allow an attorney access to his client, who was being interrogated by the police. The prosecutor in that case also misinformed the defense attorney that his client was being questioned as a witness and not as a suspect. The defendant in Reed had not yet been indicted; thus, the case implicated his Fifth Amendment right to counsel.
And see State v. Sosinski, 331 N.J. Super. 11, 21-22 (App. Div.), certif. den. 165 N.J. 603 (2000), stating that two assistant prosecutors' instructions to a police lieutenant to dispense with a Miranda warning when questioning another officer suspected of a crime "runs counter" to RPC 3.8(b). The court observed that the RPCs "are designed to make it a professional obligation on the part of assistant prosecutors to assure that a key Miranda right is honored." Id. Characterizing the prosecutors' misconduct as "egregious," the court concluded that "[i]t was a deliberate and outrageous attempt on the part of the assistant prosecutors to ensnare defendant by depriving him of his fundamental rights." Id. at 21. The court also reasoned that the rationale of cases overlooking police misconduct "does not extend to prosecutorial overzealousness which deprives a defendant of his Miranda rights." Id. Consequently, the court reversed the defendant's conviction and held that on retrial, his statement could be used neither as substantive evidence nor for impeachment purposes.
But cf. State v. Darby, 211 N.J. Super. 367, 375 (App. Div.), certif. den. 105 N.J. 559 (1986), finding no violation of RPC 3.8 when a prosecutor was present during the questioning of an incarcerated suspect who had initiated a meeting with the police subsequent to his indictment. The prosecutor listened while the police officers read the defendant his Miranda rights and obtained a waiver. See id. at 370. The key factor in Darby was that the defendant had initiated the conversation with the police officers. See id. at 373-374.
Waiver of Post-Indictment Rights.
The New Jersey Supreme Court stated in State v. Sanchez, 129 N.J. 261, 277 (1992) that one of the implications of RPC 3.8 "is that after the return of an indictment, prosecutors and their representatives should not initiate conversations with an uncounselled defendant." This statement is consistent with the Court's comment upon adoption of the rule that RPC 3.8(c) was intended to prevent prosecutors from seeking post-indictment waivers of important rights from unrepresented persons.
In Sanchez, two police detectives learned that an indicted murder suspect had been arrested in New York on charges unrelated to the New Jersey murder investigation. The detectives traveled to New York and obtained a waiver of rights and a confession from the defendant without informing him that he had been indicted. See Sanchez, 129 N.J. at 263. The Supreme Court reversed the defendant's conviction, ruling that the confession should not have been admitted because it was obtained in violation of his rights under article 1, paragraph 10 of the New Jersey Constitution. See id. at 279.
The Sanchez Court discussed extensively a prosecutor's obligation to prevent his or her agents and representatives from violating the rights of a defendant. See id. at 277-278. The Court stated, "[c]onduct of an interview with a defendant by an investigating officer may not insulate the prosecutor. Even if not accountable for the unauthorized conduct of an investigating officer, a prosecutor should not ignore such conduct." Id. In addition, the Court observed that RPC 8.4(a) may impose a duty on prosecutors to take affirmative steps to ensure that police investigators refrain from coercing confessions or inducing defendants to waive important rights. See id. at 278. The Court found support for such a duty in the pre-2000 version of ABA Model Rule 3.8(e), which required prosecutors to take reasonable steps to prevent investigators, employees, and other law enforcement personnel from making extrajudicial statements that the prosecutor would be prohibited from making.
In contrast to Sanchez, the Appellate Division in State v. Darby, 211 N.J. Super. 367, 374-375 (App. Div.), certif. den. 105 N.J. 559 (1986) concluded that there is no violation of RPC 3.8(c) when the indicted suspect initiates the meeting or conversation with the police officers and subsequently implicates himself in the crime with which he or she has been charged. In Darby, the defendant, who was incarcerated in Essex County, wrote a letter to a Union County prosecutor requesting a meeting with police officers from Essex County to discuss a robbery. At the meeting, which occurred two days after the defendant had been indicted on murder charges in Essex County and before he was represented by counsel, a prosecutor was present while the police officers read the defendant his Miranda rights and transcribed his statement about the robbery. The police officers then initiated a discussion of the murder charges and obtained a written waiver of the defendant's rights. The defendant then made a second written statement implicating himself in the murders. See id. at 370-371.
The Darby court held that the second statement was properly admitted into evidence and that there was "no violation of RPC 3.8 as it was defendant who for his own reasons called for the meeting." Id. at 375. However, the court did not address the fact that the police officers and the prosecutor initiated the discussion about the murders after the defendant had completed his statement about the unrelated robbery. This would appear to be precisely the type of overture to an unrepresented, indicted suspect that the Supreme Court disapproved in Sanchez, supra, at 277-278.
Cf. State v. Porter, 210 N.J. Super. 383, 393-394 (App. Div.), certif. den. 105 N.J. 556 (1986), finding no violation of RPC 3.8(c) in a prosecutor's questioning a robbery suspect and obtaining a waiver of his Fifth Amendment right to counsel prior to an indictment.
a. Disclosure to defense.
A prosecutor's obligation under RPC 3.8(d) to provide exculpatory evidence to the defense is similar to the duties imposed on the prosecution by Brady v. Maryland, 373 U.S. 83 (1963) and R. 3:13-3. The failure to disclose evidence favorable to the defendant violates the defendant's due process rights when "the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." State v. Hyppolite, 236 N.J. 154, 165 (2018), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963). The standard applies to impeachment evidence as well. Evidence is material, in turn, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Hyppolite, 236 N.J. at 165, citing United States v. Bagley, 473 U.S. 667, 682 (1985).
The obligation also applies in municipal court, see State v. Tull, 234 N.J. Super. 486 (Law Div. 1989), as well as to private prosecutors. See State v. Cantor, 221 N.J. Super. 219, 221-222 (App. Div. 1987), certif. den. 110 N.J. 291 (1988), noting that a municipal court conviction had been reversed because a private prosecutor failed to provide exculpatory evidence to the defense.
And see In re McDonald, 99 N.J. 78, 82 (1985), reprimanding a private municipal prosecutor for failing to disclose to the court that the defendant in a prosecution for passing bad checks had made partial restitution on several of the instruments.
In addition to the obligations to the defense and the tribunal with regard to exculpatory or mitigating evidence, a prosecutor also has an obligation to disclose to a grand jury evidence that will directly exculpate the defendant. See State v. Smith, 269 N.J. Super. 86, 97 (App. Div. 1993), certif. den. 137 N.J. 164 (1994). The Smith court stated that the prosecutor has an obligation to exercise his or her discretion in good faith to ensure that the grand jury is able to fulfill its dual functions of determining whether probable cause exists to bring criminal charges and shielding innocent people from arbitrary, capricious or unfounded prosecution. See id. at 93. The prosecutor's responsibility, the court noted, "must encompass the obligation to give the grand jury evidence in the prosecutor's possession which clearly exculpates a defendant, that is, evidence that directly negates a defendant's guilt." Id. The court concluded, however, that the evidence in question, witnesses' statements placing the defendant at a different place and in an intoxicated condition approximately one and one-half hours before the offense, did not directly negate his guilt. See id. at 97-98.
And see State v. Hogan, 144 N.J. 216, 237 (1996), clarifying that the prosecutor's duty applies only "in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." The Court stated, "We modify the Smith standard to the extent that the prosecutor's duty arises only if the evidence satisfies [those] two requirements." Id. In Hogan, the Court held that a victim's recantation of an accusation against the defendant, while directly negating his guilt, was not clearly exculpatory. See id. at 239-240.
A prosecutor's disclosure obligations include the names and addresses of the State's witnesses. See State v. Clark, 347 N.J. Super. 497, 507-508 (App. Div. 2002), reversing a conviction because the prosecutor failed to discharge this discovery obligation. The court also criticized the prosecutor's action in leading the defense to believe that the witness would testify at trial and then failing to call the witness before refusing to disclose the address. The court stated that "[a] criminal trial is not a jousting match or board game in which strategy outweighs fairness and rules are celebrated in the letter and not the spirit."
The New Jersey Supreme Court has directed courts to make referrals to the Office of Attorney Ethics if a prosecutor has "engaged in willful or egregious misconduct by intentionally withholding exculpatory evidence." State v. Hyppolite, 236 N.J. at 173. To determine whether a referral is appropriate, the court should hold a hearing "to assess the reason for the violation and the prosecution's intent." Id. The Court's insistence on intent as a precondition to an OAE referral is noteworthy, given that RPC 3.8 prohibits the wrongful nondisclosure without reference to a mens rea standard.
b. Display before trial.
A prosecutor may not display to the public, prior to a defendant's trial, evidence such as contraband or weapons seized from the defendant. See N.J. Advisory Comm. on Professional Ethics Op. 731 (Feb. 17, 2017). The Committee cited RPC 3.6 and also found that such a display carried a likelihood of heightening public condemnation of the accused, and did not fall within the RPC 3.8(f) exception for statements that are "necessary" and serve a legitimate law-enforcement purpose. The inquirer had argued that a display of drugs was "necessary" to heighten public awareness of the "opioid epidemic" in New Jersey and to demonstrate the "robust" nature of law enforcement's interdiction effort. The Committee indicated in response that the exception is reserved for communications that are "necessary" to alert the community about a specific and current danger to public safety, such as an escaped prisoner who is "armed and dangerous."
Fair Comment During Argument and Questioning.
A prosecutor also has an obligation to refrain from improper and inflammatory comments during a summation to a jury and to avoid injecting a personal opinion about the defendant's guilt into closing arguments. See, e.g., State v. Marshall, 123 N.J. 1, 158-160 (1991); State v. Ramseur, 106 N.J. 123, 320-322 (1987); State v. Hinds, 278 N.J. Super. 1, 17-18 (App. Div. 1994), rev'd on other grounds 143 N.J. 540 (1996). In an opening argument, a prosecutor should not promise more than he or she can deliver. That is, the prosecutor should not describe the anticipated inculpatory testimony of a witness unless the prosecutor in good faith believes that the witness will in fact testify. See State v. Torres, 328 N.J. Super. 77, 94-95 (App. Div. 2000). Moreover, a prosecutor may not incorporate personal opinions about truth or falsity into examinations of witnesses, nor may a prosecutor refer during such questioning to evidence that is not in the record. See, e.g., State v. Frost, 158 N.J. 76, 85 (1999); Marshall, 123 N.J. at 153-155; State v. Lopez, [359 N.J. Super. 222]359 N.J. Super. 222, 238-240 (App. Div.), app. dism'd 178 N.J. 372 (2003). While such actions may be more properly characterized as violations of RPC 3.4(e), which applies to all lawyers, the Supreme Court has analyzed them as violations of "the special ethical rules governing prosecutors." 106 N.J. at 323.
A prosecutor also "should not in either obvious or subtle fashion draw attention to a defendant's decision not to testify." State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. den. 171 N.J. 340 (2002). See also State v. Tilghman, 345 N.J. Super. 571, 576-577 (App. Div. 2001), reversing a conviction because of the prosecutor's references in summation to the defendant's post-arrest silence and request for a lawyer. And see the discussion in Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence (GANN), Comment 4 on N.J.R.E. 501. See also State v. Jones, 364 N.J. Super. 376, 382-384 (App. Div. 2003), ruling that a prosecutor may not respond to a defense argument emphasizing the lack of fingerprint evidence by suggesting that the defendant had an obligation to present that evidence. Similarly, when the State has introduced seemingly innocuous physical evidence, along with testimony that purports to explain the item's connection to criminal activity, the prosecutor may not suggest in summation that the burden of proof shifts to the defendant to provide a benign explanation for the presence of the item. See State v. Lopez, 359 N.J. Super. at 238, 240.
"While prosecutors are expected to make vigorous and forceful closing arguments to juries, their comments should be reasonably related to the scope of the evidence presented." State v. Williams, 244 N.J. 592, 614-617 (2021). In Williams, the defendant was accused of robbing a bank by presenting a note to a teller that read "Please, all the money, 100, 50, 20, 10. Thank you." At issue was whether the defendant had committed second degree robbery, which entails force or the threat of force, or third degree robbery for which there is no force element. In closing, the prosecutor displayed a pictorial slide with the words "ACTIONS SPEAK LOUDER THAN WORDS" and a picture of Jack Nicholson's face through a door from the horror movie "The Shining." The prosecutor then explains that even though Nicholson's character did not say anything threatening, "you know how his face gets through the door" - a reference to the fact that the character had smashed the door with an ax.
The Court found the picture and the comments improper and reversed the conviction. The Court noted that it was a close call as to whether the defendant placed the teller in fear of immediate bodily injury. However, the prosecutor's attempts to draw a parallel between the facts of the case, where the defendant did not use any violence before or after passing the note to the teller, and the scene from The Shining "went far beyond the evidence at trial." Id. at 615. In reversing the conviction, the Court reasoned that the errors "made it more likely that the jury would reject the defense" that only a theft occurred. Id. at 616 (quoting State v. Wakefield, 190 N.J. 397, 437 (2007).
For other examples of improper questioning or summation by prosecutors, see State v. Wakefield, 190 N.J. 397, 457 (2007); State v. R.B., 183 N.J. 308, 332 (2005); Frost, 158 N.J. at 80-82; Marshall, 123 N.J. at 153-160; Ramseur, 106 N.J. at 320-324; State v. Murphy, 412 N.J. Super. 553, 559-563 (App. Div. 2010), certif. den. 203 N.J. 440 (2010); State v. Atkins, 405 N.J. Super. 392, 402, 406-407 (App. Div. 2009); State v. Scherzer, 301 N.J. Super. 363, 433-446 (App. Div.), certif. den. 151 N.J. 466 (1997); Hinds, 278 N.J. Super. at 15-18; State v. Millett, 272 N.J. Super. 68, 90 (App. Div. 1994); State v. Watson, 224 N.J. Super. 354, 363 (App. Div. 1988), certif. den. 111 N.J. 620 (1988). In Frost, the Court found "highly improper" the prosecutor's suggestion that "buy money" from a drug transaction was not placed in evidence because it had been confiscated, a legally and factually inaccurate and misleading statement. Frost, 158 N.J. at 84-85. Even "more egregious," the Court stated, were comments about the credibility of the testifying police officers and the "magnitude" of charges they could face if they lied. The Court reasoned that these comments inappropriately bolstered the credibility of the State's witnesses and implied that an acquittal would jeopardize the officers' careers. Id. at 85-86. Finally, the Court noted, the State's dismissal of the defense argument as "lawyer talk" was improper. The Court observed that "[d]efense counsel should not be subjected to disparaging remarks for simply doing his or her job." Id. at 86. See also State v. Bunch, 180 N.J. 534, 549 (2004) (prosecutor should not ask testifying defendant to "assess the credibility" of the State's witnesses; though finding that, under the circumstances, it did not deprive defendant of a fair trial); State v. T.C., 347 N.J. Super. 219, 237-238 (App. Div. 2002), certif. den. 177 N.J. 222 (2003) (prosecutor may not ask testifying defendant if State's witnesses against her were "lying").
In Watson, the prosecutor also denigrated the defense attorney, asserting that the role of defense counsel is to "obfuscate the facts," see Watson, 224 N.J. Super. at 363, while in Millett the prosecutor suggested that the jury draw an inference he knew was false and which he also knew the defendant would be unable to rebut without implicating himself in other crimes. See Millett, 272 N.J. Super. at 90-91. The Millett court characterized the prosecutor's action as an attempted circumvention of the trial court's earlier rulings relating to evidence of other crimes. See also State v. Negron, 355 N.J. Super. 556, 569-570, 577 (App. Div. 2002), disapproving a prosecutor's claim in summation that defense counsel had presented a case "premised on lies"; State v. Munoz, 340 N.J. Super. 204, 217-218 (App. Div.), certif. den. 169 N.J. 610 (2001), ruling that it is improper for a prosecutor to demean the role of defense counsel by suggesting that the attorney encouraged a witness to "concoct" an alibi for the defendant; State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991), ruling that a prosecutor may not state that defense counsel's role is to confuse the jury. It is also improper to imply that a defendant's consultation with a lawyer indicates guilt. See, e.g., State v. Buscham, 360 N.J. Super. 346, 365 (App. Div. 2003).
A prosecutor may not encourage jurors to "send a message" to the community and may not focus the jurors' attention on the possible danger presented by the defendant in the future. See State v. Pennington, 119 N.J. 547, 576 (1990), disallowing "remarks implying that jurors will violate their oaths if they fail to convict or return a death sentence." Similarly, in Ramseur, the Court criticized a prosecutor's suggestion during summation that the jurors' deliberations be influenced by the need to protect society from crime. See Ramseur, 106 N.J. at 321. The court in State v. Tilghman, 345 N.J. Super. 571, 577-578 (App. Div. 2001) also disapproved remarks emphasizing the need to protect vulnerable groups rather than focusing on the particular victim involved in the case. And see State v. Echols, 199 N.J. 344, 360-361 (2009) (prosecutor improperly referred "to the safety of the jurors in the courtroom"); State v. Rodriguez, 365 N.J. Super. 38, 48-52 (App. Div. 2003), certif. den. 180 N.J. 150 (2004) (improper reference to the insanity defense as an "excuse" for murder and imploring the jury to "let the battle for justice be won..."); State v. Neal, 361 N.J. Super. 522, 537-538 (App. Div. 2003) (improper reference to betrayal of city's children during perjury prosecution of member of board of education); State v. Buscham, 360 N.J. Super. at 364-365 (criticizing prosecutor's implication that an acquittal would somehow endanger the victim of the alleged crime once again); State v. Negron, 355 N.J. Super. at 576 (summation was prejudicial because the prosecutor had portrayed himself as the representative of the jury's "friends, neighbors and relatives in the community"). In addition, a prosecutor may not direct remarks to individual jurors, or refer to any juror by name, experience, or background. See State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. den. 177 N.J. 572 (2003).
With respect to statements about expert testimony, see State v. Moore, 122 N.J. 420, 461-462 (1991), cautioning against a prosecutor attacking an expert witness's opinion during summation "by pitting his own expertise against that of the witness." In addition, the Court criticized the prosecutor's reference to another expert as a "professional bleeding heart who was indeed duped by the defendant," when there was no support for that attack in the record. Similarly, in State v. Smith, 167 N.J. 158, 183-184 (2001), the Court reversed a conviction because of a prosecutor's unsubstantiated claim that defense experts had shaded their testimony because of their "hefty fees" and because they hoped to continue to be hired as experts in the future. The Court specifically observed that "the record is barren of any implication that the experts fabricated their answers or were motivated to draw favorable conclusions based on their relationship with defense counsel or their expectation of future employment." And see State v. Negron, 355 N.J. Super. 556, 571, 578 (App. Div. 2002), overturning a guilty verdict in part because the prosecutor accused defense expert witnesses of fabricating testimony for a fee. See also State v. Walden, 370 N.J. Super. 549, 561-562 (App. Div.), certif. den. 182 N.J. 148 (2004), disapproving a prosecutor's expression of a personal belief in a State witness's honesty and truthfulness based on information outside the trial evidence; State v. Sheika, 337 N.J. Super. 228, 250 (App. Div.), certif. den. 169 N.J. 609 (2001), stating that it is improper for a prosecutor to suggest in summation that the trial judge has endorsed or vouched for the credibility of a prosecution witness, when the judge has found only that the witness is qualified to offer an expert opinion.
Generally, a prosecutor should refrain from using "epithets" to describe a defendant. See State v. Loftin, 146 N.J. 295, 387 (1996), disapproving of the prosecutor's reference to the defendant as a "cold-hearted and depraved" murderer. And see State v. Supreme Life, 473 N.J. Super. 165, 174-176 (App. Div. 2022), reversing conviction where prosecutor repeatedly called defendant a liar during summation and stated that his trial testimony was not worthy of belief because he was a liar; State v. Neal, 361 N.J. Super. at 536, disapproving a prosecutor's reference to a perjury defendant's "audacity" and "shamelessness" in calling character witnesses; State v. Sheika, 337 N.J. Super. at 250, observing that "derogatory name-calling"_specifically, referring to the defendant and a defense witness as thugs_is "beneath the dignity of the prosecutor." Along the same line, a prosecutor may not highlight a crime victim's virtues in order to inflame the jury. See State v. Jang, 359 N.J. Super. 85, 95-97 (App. Div.), certif. den. 177 N.J. 492 (2003), disapproving a prosecutor's description of a victim as sacrificing her life to save her family when there was no support in the record for such a characterization. See also State v. Koskovich, 168 N.J. 448, 536 (2001), stating generally that "prosecutors must avoid prejudicial and overly emotional or extraneous references at all stages of the criminal process, especially in capital proceedings."
But see State v. Loftin, 146 N.J. at 387, finding no impropriety in a prosecutor's characterization of a murder as "execution-style," when the defendant shot his victim in the head from a distance of less than three feet. And see State v. Mahoney, 188 N.J. 359, 376 (2006), finding that a prosecutor's comments legitimately placed an "unforgiving and harsh glare" on the defense advanced by defendant. See also State v. Munoz, 340 N.J. Super. at 216, suggesting that a prosecutor has greater leeway in responding to misleading assertions made by defense counsel during summation. In State v. Morais, 359 N.J. Super. 123, 131-132 (App. Div.), certif. den. 177 N.J. 572 (2003), a prosecution of a police officer for official misconduct and false swearing, the court concluded that the prosecutor's reference to the "blue wall" of silence was permissible when the defense pitted the credibility of its witnesses, a group of police officers, against that of the prosecution's primary witness, a known drug dealer. In addition, the court upheld the prosecutor's references to the integrity of the criminal justice system because the defense had raised the issue of the police officer's role in a "war on drugs." See also State v. Vasquez, 374 N.J. Super. 252, 260-261 (App. Div. 2005), holding that a prosecutor's remarks in support of police officers' credibility was a permissible response to defense counsel's assertion that police "stretch the truth" when testifying in order to ensure convictions. See also, State v. Wakefield, 190 N.J. 397, 439-440 (2007) (prosecutor "trod close to the prohibited expression of a personal opinion" in opening statement comments that State does not seek death penalty routinely or lightly, but only when the facts call for it; however, judge's instruction to jury cured RPC 3.4(e) concern).
With respect to opening arguments, see State v. Torres, 328 N.J. Super. at 94-95, indicating that a prosecutor "departs from his ethical and professional obligations" when he attempts to gain a tactical advantage by referring to testimony or other evidence that he knows will not be presented later in the trial. In Torres, an assistant prosecutor told the jury during his opening that an accomplice of the defendant would testify in detail about the defendant's involvement in a series of murders. The prosecutor informed the jury of the accomplice's previous guilty plea, his sentence, and the fact that there had been no plea agreement in exchange for the anticipated damaging testimony. When the accomplice subsequently refused to testify, the judge declared a mistrial at the request of the defendant, finding that the prejudice to the defendant was "ineradicable." A different judge then concluded that the prosecutor lacked a reasonable belief that the accomplice would testify. Consequently, the judge determined that the prosecutor had "goaded" the defendant into seeking a mistrial and that double jeopardy considerations therefore precluded a retrial.
The Appellate Division reversed that decision, but was nevertheless highly critical of the prosecutor's actions. The court noted that the prosecutor could have sought a pretrial hearing to ascertain whether the accomplice would appear and testify. Instead, he offered a detailed description of the accomplice's testimony, without regard to "the risk of causing ineradicable prejudice to the accused." Id. at 95. The court ruled that "[t]his conduct was wholly at odds with the assistant prosecutor's overriding duty to seek justice." In addition, the court described the content of an acceptable opening statement:
A prosecutor's opening statement should provide an outline or roadmap of the State's case. It should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.
Id. Accord, State v. Greene, 242 N.J. 530, 548 (2020); State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. den. 182 N.J. 148 (2004).
With respect to arguments before a grand jury, see State v. Sivo, 341 N.J. Super. 302, 325-326 (Law Div. 2000), noting that a prosecutor was "derelict in candor" in suggesting to a grand jury that he would soon be pursuing charges against the lower-ranking members of an illegal gambling conspiracy, when in fact he had no intention of doing so.
Only an attorney can serve as private prosecutor, R. 7:8-7(b). The rationale for this limitation is grounded in the Rules of Professional Conduct: "[u]nlike private citizens, prosecutors are guided and governed by the Rules of Professional Conduct and our case law to ensure fairness in the process." State v. Bradley, 420 N.J. Super. 138, 142 (App. Div. 2011), quoting In re Loigman, 183 N.J. 133, 144 (2005). Moreover, private prosecutors are permitted only when cross-complaints have been filed and the court finds the potential that the municipal prosecutor faces a conflict of interest. See R. 7:8-7(b).
R. 7:8-7(b) also requires potential private prosecutors to execute a certification submitted on a form approved by the Administrative Director of the Courts. In State v. Myerowitz, 439 N.J. Super. 341, 357-359 (App. Div. 2015), the private prosecutor's certification deviated materially from the approved form. The court concluded that the defendant's conviction was thus rendered void ab initio. In State v. Valentine, 374 N.J. Super. 292, 297-298 (App. Div. 2005), the private prosecutor's failure to even submit a certification also required the court to reverse the defendant's conviction. In doing so, the court rejected the State's argument that the failure to comply with the certification requirement could be excused if the defendant did not object or suffer any prejudice.
Prior to this limitation on private prosecutions by R. 7:8-7(b), private prosecutions were permitted "as a last resort" under former R. 7:4-4(b) when a conflict of interest with the municipal prosecutor would have prevented the defendant from receiving a fair trial. In State v. Storm, 141 N.J. 245, 254 (1995), the Court placed a number of limitations on the practice because it recognized that private prosecutions may undermine public confidence in municipal court proceedings absent certain protections.
The primary problem identified by the Storm Court was the conflict of interest that developed if the private prosecutor also represented the complaining witness in a civil action based on the same conduct. See Storm, 141 N.J. at 252-253 and discussion at 19:3-1. In such a situation, the private prosecutor's obligation to the State to see that justice is done conflicted with his or her obligations as a lawyer to the complaining witness in connection with the civil action. The conflicting duties may have affected the private prosecutor's assessment of probable cause or willingness to disclose exculpatory evidence to the defendant. See Storm, 141 N.J. at 253. See also State v. Cantor, 221 N.J. Super. 219, 221-222 (App. Div. 1987), certif. den. 110 N.J. 291 (1988), noting that a municipal court conviction had been reversed because a private prosecutor failed to provide exculpatory evidence to the defense; State of New Jersey v. Kinder, 701 F. Supp. 486, 490 (D.N.J. 1988), describing the conflicts faced by a private prosecutor.
The Storm Court also observed that it would be improper for a private prosecutor to use the municipal court action in an attempt to gain an advantage in the related civil action. See Storm, 141 N.J. at 253. See also State of New Jersey v. Imperiale, 773 F. Supp. 747, 748 (D.N.J. 1991) and the discussion at 29:2-2 of RPC 3.4(g)'s prohibition against threatening criminal charges to gain an advantage in a civil matter.
To preserve the integrity of municipal court proceedings, the Storm Court established a number of interim guidelines to govern the appointment of private prosecutors. An attorney wishing to appear as a private prosecutor must notify both the municipal prosecutor and the court. The municipal court will consider the private attorney's application only if the municipal prosecutor declines to prosecute the case. See Storm, 141 N.J. at 255. See also State v. LaResca, 267 N.J. Super. 411, 414 n.1 (App. Div. 1993), noting that a private attorney "may not merely notify all concerned of an intention to act as prosecutor on behalf of the State."
The Storm Court directed that a private attorney must disclose in a written certification all facts that may foreseeably affect the fairness of the proceedings, including any possible conflicts of interest, the identity of the complainant, any existing or anticipated civil litigation between the complainant and the defendant, whether the defendant is represented by counsel, and any other relevant facts that may create a conflict or an appearance of impropriety. See Storm, 141 N.J. at 255. The Court then held that in light of the lengthy, litigious history between the complainant and the defendant in the case before it, the private attorney would be unable to act with the impartiality required of a prosecutor, and was therefore disqualified. See Storm, 141 N.J. at 255-256.
As for other cases and opinions addressing the former practice, see State v. Harris, 262 N.J. Super. 294, 301-302 (Law Div. 1992), analyzing factors similar to those cited in Storm and finding no impermissible conflict in a private prosecutor's appearance in a municipal court action having no civil implications; Imperiale, 773 F. Supp. at 750, 755, focusing on the conflict that may arise when a private prosecutor is involved in a pending or potential civil action between the parties, or when the complainant himself or herself is also the prosecutor. With respect to a private prosecutor's ability to condition a dismissal of charges on execution of a release of civil claims, see N.J. Advisory Comm. on Professional Ethics Op. 565 (Aug. 15, 1985). Note also that the Advisory Committee has discerned no conflict of interest in a municipal prosecutor acting as a paid private prosecutor in certain circumstances. See Advisory Comm. Op. 523 (Mar. 1, 1984) and Fleming v. United Parcel Service, 273 N.J. Super. 526, 531 (App. Div.), certif. den. 138 N.J. 264 (1994). But see Harris, 262 N.J. Super. at 302 n.2, criticizing Opinion 523 and suggesting that the payment of a public official by a private party creates an appearance of impropriety.