职业行为准则

Rule 3.8 .检察官的特别责任

刑事案件的检察官不得:
   (a)行使自由裁量权进行调查或起诉, improperly favor or invidiously discriminate against any person;
   (b) File in court or maintain a charge that the prosecutor knows is not supported by probable cause;
   (c) Prosecute to trial a charge that the prosecutor knows is not supported by evidence sufficient to establish a prima facie showing of guilt;
   (d) Intentionally avoid pursuit of evidence or information because it may damage the prosecution’s case or aid the defense;
   (e)故意不向辩方披露, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, 或者与量刑有关, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
   (f) Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused; or
   (g)在向大陪审团提交案件时, intentionally interfere with the independence of the grand jury, 抢先行使大陪审团的职权, 滥用大陪审团的程序, or fail to bring to the attention of the grand jury material facts tending substantially to negate the existence of probable cause.

Comment

   [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. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. 这条规则旨在提炼一些, but not all, of the professional obligations imposed on prosecutors by applicable law. The rule, however, is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, 联邦或哥伦比亚特区的法规, 以及法庭程序规则.
   [2] Apart from the special responsibilities of a prosecutor under this rule, prosecutors are subject to the same obligations imposed upon all lawyers by these 职业行为准则, including Rule 3.4 prohibiting the discriminatory use of peremptory strikes, and Rule 5.3, relating to responsibilities regarding nonlawyers who work for or in association with the lawyer’s office. Indeed, 因为检察官的权力和知名度, 检察官对这些规则的遵守情况, and recognition of the need to refrain even from some actions technically allowed to other lawyers under the Rules, may, 在某些情况下, 特别重要的. 例如，规则3.6 prohibits extrajudicial statements that will have a substantial likelihood of destroying the impartiality of the judge or jury. 在刑事诉讼的背景下, pretrial publicity can present the further problem of giving the public the incorrect impression that the accused is guilty before having been proven guilty through the due processes of the law. It is unavoidable, of course, that the publication of an indictment may itself have severe consequences for an accused. What is avoidable, however, is extrajudicial comment by a prosecutor that serves unnecessarily to heighten public condemnation of the accused without a legitimate law enforcement purpose before the criminal process has taken its course. When that occurs, 即使最后的审判没有偏见, the accused may be subjected to unfair and unnecessary condemnation before the trial takes place. Accordingly, 检察官应特别注意避免公开, 比如通过电视澳博app发布会, which would unnecessarily heighten condemnation of the accused.
   [3]本评论无任何内容, however, is intended to suggest that a prosecutor may not inform the public of such matters as whether an official investigation has ended or is continuing, 或者是谁参与了, and the prosecutor may respond to press inquiries to clarify such things as technicalities of the indictment, 事情的现状, 或者随之而来的法律程序. Also, 检察官应该有回应的自由, 只要有必要, to any extrajudicial allegations by the defense of unprofessional or unlawful conduct on the part of the prosecutor’s office.