February 2014 California Bar Exam: Essay #1 (PR)

This is the first of six posts in which I will analyze the essay questions from the February 2014 California Bar exam and will provide sample answers.  Below is the essay question from the California Bar website (here).  As you can see, it was a professional responsibility question.  I have bolded the facts that I thought were especially relevant.  My general thoughts and sample answer are after the jump.

Essay Question

Three months ago, Dave was arrested for the burglary of a shoe store after a forensic investigation by the police department identified him as the burglar.  Patty, a prosecutor, brought burglary charges against him. 

A week ago, Patty saw a press release that the police chief was planning to issue to the media. It stated that Dave was a “transient” and had been “arrested for burglary by Inspector Ing, who is known for his ability to apprehend guilty criminals.” 

Four days ago, Patty received a report from a federal agency stating that the police department’s forensic investigation identifying Dave as the burglar was unreliable.

Three days ago, Patty announced “ready for trial” at a pretrial conference. 

Yesterday, Patty learned that two eyewitnesses had identified Dave as the burglar. Because she did not intend to use evidence from the forensic investigation, she did not disclose the federal agency report to Dave’s attorney. Dave’s attorney has never asked her to provide discovery. 

This morning, Patty called the judge who will be presiding over Dave’s trial to reassure him that there is ample non-forensic evidence to convict Dave. 

What ethical violations, if any, has Patty committed? Discuss. 

Answer according to California and ABA authorities.

General Thoughts

This one is a nice, simple Professional Responsibility question.  It helps to look at the call of the question first to focus your thinking (i.e., to avoid looking at it as a possible Criminal Procedure question and to see that you are only asked about Patty's violations).  Also, this essay question has many similarities to a question that appeared on the July 2009 California Bar exam (e.g., prosecutor’s special duties, pretrial publicity).  This is yet another reason why you cannot do enough practice essays.

Sample Answer

Note: I tried to cover all of the issues that I saw in detail.  I did not write this under testing conditions, so I do not mean to imply that this is a "passing" answer.  This is just meant to help you see some of the issues and potential analysis.  Anything that you think I missed?  Reach any different conclusions?  Think it would have been worth addressing improper influence of jury?   Please chime in with a comment.

Patty's Duties As Attorney and Prosecutor

Under both the ABA and CA authorities, Patty owes a duty of fairness to both the court and opposing counsel.  Similarly, under both ABA and CA authorities, because of Patty’s role as prosecutor, she has higher ethical obligations in several areas than criminal defense or civil attorneys.

Charge Lacking Probable Cause

The basic duty of a prosecutor is to seek justice – not just to win cases.  A prosecutor must have probable cause to carry on his/her case.  Probable cause requires facts sufficient to lead a man of ordinary caution to believe that a crime was committed and the defendant was the one who committed it.

Here, Dave was arrested through months ago for the burglary of a shoe store after a forensic investigation by the police department identified him as the burglar.  Patty brought burglary charges against him.  At the time that she brought the charges, it was supported by the forensic investigation.  Such evidence could arguably lead a man of ordinary caution to believe that the crime was committed by Dave.  One could argue that it is not enough evidence to lead an ordinary man to believe that Dave committed it and that further corroborating evidence is necessary.  However, the evidence need to prove guilt beyond a reasonable doubt - it need only be sufficient to lead a man of ordinary caution to believe that Dave committed the crime.  The police department's forensic investigation was likely initially sufficient to establish probable cause.

However, four days ago, Patty received a report from a federal agency stating that the police department's forensic investigation identifying Dave as the burglar was unreliable.  Three days ago, just one day after receiving the report, she announced that she was "ready for trial" at a pretrial conference.  Two days ago she learned of two eyewitnesses that identified Dave, but this was after she had declared that she was "ready for trial."  At this point, most arguably lacked probably cause to continue with the prosecution.  The forensic investigation was her only basis for probable cause.  If found unreliable, she would have no basis.  But just because a federal agency issued a report stating that the forensic investigation was unreliable does not necessarily mean that the investigation was wrong.  It just calls into question the evidence and means that it is less strong. It could still lead a man of ordinary caution to believe that Dave had committed the crime.  There would be a strong argument that Patty lacked probable cause once she received the report, but she could likely establish that she still had probable cause to pursue the charge against Dave.

Once Patty learned of the two eyewitnesses, she almost certainly had probable cause to continue with the charge of burglary against Dave.  At that point she had the forensic investigation - although called into question by the federal agency's report - as well as two eyewitnesses.  That should be enough for a man of ordinary caution to believe that Dave had committed the crime.

Therefore, Patty likely had probable cause at all times to bring the burglary charges against Dave, but there may have been a short period of time - after receiving the federal agency's report and before learning of the two eyewitnesses - when she lacked probable cause. 

Exculpatory Evidence

Prosecutors have a special duty to timely disclose any evidence that is adverse to their case (i.e., favorable to the defense, exculpatory) in sufficient time to allow proper preparation for trial.  To be exculpatory, the evidence must only have a tendency of favoring the criminal defendant.

Here, Patty failed to disclose a report from a federal agency to Dave's counsel.  One week ago, Patty received a report from a federal agency stating that the police department's forensic investigation identifying Dave as the burglar was unreliable.  Dave had been arrested after the forensic investigation identified him.  Patty did not disclose the federal agency report to Dave's attorney because she did not intend to use evidence from the forensic investigation.  Just yesterday she learned of two eyewitnesses that identified Dave as the burglar.   

Patty learned of the report from the federal agency one week ago and did not provide it to Dave's counsel.  Even if he did not ask for it, she had a duty to provide it.  She would have needed to disclose it in sufficient time to allow Dave's counsel to prepare for trial, which would have meant immediately as it appears from the fact pattern that the trial was to begin.  Patty could argue that because she was not going to use the forensic investigation the federal agency's report was irrelevant and would not help Dave's defense.  However, the evidence must only have a tendency of favoring the criminal defendant.  The federal agency's report could be used to call into question the entire investigation by the police which could extend to identifying the eyewitnesses.  Further, Patty did not learn of the eyewitnesses until only yesterday, so up until that point she must have intended on using the forensic investigation in making her case.  

Therefore, Patty likely committed an ethical violation by failing to disclose to Dave's attorney the report from the federal agency. 

Pretrial Publicity - Extrajudicial Statements By Attorney

As part of a lawyer’s duty of fairness, she has a duty to not make any extrajudicial statements that she knows or should know will be disseminated by means of public communication when there is any likelihood of prejudicing the proceedings.  There are several exceptions to the general prohibition, including statements regarding matters in the public record; statements regarding routine booking information; statements acting as warnings to the public; statements informing the public of an ongoing investigation; statements seeking help from the public; and statements required to protect a client from substantial undue prejudice caused by recent publicity that are not self-initiated.

Here, Patty did not make any extrajudicial statements.  Rather, she was a press release that the police chief was planning on issuing to the media.  It could be argued that the police chief was acting as an agent of Patty and that she should be held ethically accountable for not stopping the press release.  This would be a tough argument as there are no facts to support that Patty in any way encouraged the press release.  The police chief is presumably separate from the prosecutor's office and is not an employee within her control.  However, were the police chief found to be an agent of Patty for which she could be held accountable, then there would be the question of whether Patty knew the statement would be disseminated by means of public communication and whether the statement is likely to prejudice the proceedings.  Patty clearly knew that the statement would be disseminated by means of public communication.  She saw a press release that she knew the police chief was planning to issue to the media.  Patty could argue that the press statement was only intended to update the public on the investigation and was not likely to prejudice the proceedings.  However, there are strong arguments that the statement was likely to prejudice the proceedings.  It referred to Dave as a "transient" and stated that he was arrested by an inspector who is known for his ability to apprehend guilty criminals.  Were a juror to read this, they could be influenced both by the reference to Dave as a transient and the statement that the inspector who arrested him is known for his ability to apprehend guilty criminals.  A juror might be prejudiced by the reference to Dave as a transient, thinking that a transient is more likely to commit burglary.  The statement implies that Dave is guilty.  Further, it implies that the arresting officer has a great reputation and should be regarded as reliable.  However, as previously mentioned, Patty would not be held responsible for the press release under this standard.

In conclusion, Patty's duties as an attorney would likely not make her liable for the police chief's press release despite the intent to publicly disseminate the statement and its likeliness to prejudice the proceedings. 

Pretrial Publicity - Special Rule For Prosecutors

In addition to the general prohibition on extrajudicial statements, under the ABA Model Rules, prosecutors and their associates must refrain from making comments that have a substantial likelihood of heightening public condemnation of a defendant.  A prosecutor must 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 this standard, Patty could be responsible for the police chief's press statement.  Here, Patty saw a press release that the police chief was planning to issue to the media. It referred to Dave as a transient and stated that he had been arrested by an inspector known for his ability apprehend guilty criminals.

Therefore, Patty likely violated the Model Rules by not stopping the police chief from issuing his press statement to the media. 

Ex Parte Communication With Judge

Under the ABA Model Rules, a lawyer's duty of fairness and candor includes a prohibition on ex parte communications with a judge unless authorized by court order.

Here, Patty called the judge who will be presiding over Dave's trial to reassure him that there is ample non-forensic evidence to convict Dave.  From the fact pattern it does not appear that Dave's counsel was included in the communication.  The communication did not involve mere administrative matters (e.g., scheduling a hearing), but went to the substance of the case and the quality of the evidence.  

Therefore, under the ABA Model Rules, Patty likely committed an unethical ex parte communication when she contacted the judge about having ample non-forensic evidence to convict Dave.