N.M. R. Prof'l. Cond. 16-308

As amended through January 19, 2021
Rule 16-308 - Special responsibilities of a prosecutor

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 pretrial rights, such as the right to a preliminary hearing;
D. make timely disclosure to the defense of all evidence or information 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) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information; and
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 are false or create a clear and present danger of prejudicing a criminal proceeding, 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 16-306 NMRA of the Rules of Professional Conduct.
G. promptly disclose new, credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted. Such evidence shall be disclosed in writing when it becomes known to the prosecutor, absent court authorization otherwise. If the defendant is unrepresented, the prosecutor shall inform a person reasonably certain to inform the defendant or take appropriate action.

N.M. R. Prof'l. Cond. 16-308

As amended by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 15-8300-007, effective December 31, 2015.

Committee 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. 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 the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable 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 16-804 NMRA of the Rules of Professional Conduct.

[2] In some jurisdictions, a defendant may waive a preliminary hearing 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. Paragraph C does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.

[3] The exception in Paragraph D 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] Paragraph E is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.

[5] Paragraph F supplements Rule 16-306 NMRA of the Rules of Professional Conduct, which prohibits extrajudicial statements that are false or create a clear and present danger of prejudicing a criminal proceeding. Nothing in this commentary is intended to restrict the statements that a prosecutor may make that comply with Paragraph B or C of Rule 16-306 NMRA of the Rules of Professional Conduct.

[6] Like other lawyers, prosecutors are subject to Rules 16-501 and 16-503 NMRA of the Rules of Professional Conduct, which relate to responsibilities regarding lawyers and non-lawyers who work for or are associated with the lawyer's office. Paragraph F reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, Paragraph F requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.

[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor's jurisdiction was convicted of a crime that the person did not commit, Paragraph G requires prompt written disclosure to defense counsel or, if defendant is unrepresented, to a person reasonably certain to inform defendant or take appropriate action on defendant's behalf. Examples of persons reasonably certain to inform defendant or take appropriate action are the chief prosecutor and/or chief public defender of the jurisdiction where the conviction occurred. Other examples are the appropriate court or tribunal in the jurisdiction where the conviction occurred.

[8] For purposes of Paragraph G of this rule, the term "prosecutor" includes any current prosecutor as well as any former prosecutor who was involved in the prosecution of the defendant. The duty of a former prosecutor under this rule, however, may be limited when that duty conflicts with duties to current clients. The term "material" as used in this subsection has the same meaning as construed under Brady v. Maryland, 373 U.S. 83 (1963), its progeny, and Rule 16-308(D). The term "promptly" in this subsection is intended to require disclosure when it becomes evident to the prosecutor that the information is new, credible, and material. "Promptly" does not bar appropriate inquiry and investigation to determine whether disclosure must be made.

[9] A prosecutor who makes a good faith judgment complies with the prosecutor's obligation under this rule even if, after the fact, others believe that the judgment was not only erroneous, but negligent. It is preferred that a prosecutor who chooses not to disclose evidence, record the reasons in writing.

[10] The Committee considered the full text of ABA Model Rules 3.8(g) and (h) but rejected those rules as too procedural. The Committee's view is that the Rules of Professional Conduct should define ethical duties rather than establish rules of procedure, particularly when ethical rules of procedure may conflict with established rules of criminal procedure or other laws. Thus, this rule focuses on a prosecutor's ethical duty to disclose evidence of a defendant's innocence to a person reasonably certain to relay the information to a defendant and/or act on a defendant's behalf. The rule does not mandate a prosecutor to take any particular action beyond the appropriate disclosure of exculpatory information.

[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 15-8300-007, effective December 31, 2015.]

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ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, provided for additional disclosure duties for a prosecutor who receives evidence related to the innocence of a convicted defendant, and revised the committee commentary; added Paragraph G; and in the committee commentary, added Paragraphs 7, 8, 9 and 10. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in Paragraph B, deleted "prior to appearing in a court proceeding where a defendant appears without counsel"; in Paragraph D, changed "reasonably relevant" to "unprivileged"; added Paragraph E; and in Paragraph F, added the provision which provides that 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, the prosecutor must refrain from making extrajudicial comments that are false or create a danger of prejudicing a criminal proceeding. Prosecutorial misconduct in closing argument. - Where defendant, who was initially stopped for not wearing a seatbelt during a routine seatbelt enforcement operation, was charged with DWI; during defense counsel's closing argument, defense counsel noted that the state had presented no evidence regarding the underlying seatbelt violation; and in rebuttal, the prosecutor told the jury that defense counsel lied when commenting on the absence of a seatbelt citation, while simultaneously waiving a copy of the seatbelt violation citation which had not been introduced into evidence in front of the jury, the prosecutor's actions created an unnecessary risk to defendant's right to a fair trial and the impartial administration of justice. State v. Torres, 2012-NMSC-016, 279 P.3d 740. Prosecutor bias may be imputed to the office when there is an appearance of impropriety in permitting anyone else in the office to proceed. State v. Gonzales, 2005-NMSC-025, 138 N.M. 271, 119 P.3d 151. Bias in fact required. - A prosecutor may not have a personal bias against a defendant. There must be a basis in fact for a determination that a bias exists. State v. Gonzales, 2005-NMSC-025, 138 N.M. 271, 119 P.3d 151. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law § 72. Propriety and prejudicial effect of prosecuting attorney's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646. Disciplinary action against attorney for misconduct related to performance of official duties as prosecuting attorney, 10 A.L.R.4th 605. Use of plea bargain or grant of immunity as improper vouching for credibility of witness -state cases, 58 A.L.R.4th 1229. Prosecutor's appeal in criminal case to self-interest or prejudice of jurors as taxpayers as ground for reversal, new trial, or mistrial, 60 A.L.R.4th 1063. Admonitions against perjury or threats to prosecute potential defense witness, inducing refusal to testify, as prejudicial error, 88 A.L.R.4th 388. Prejudicial effect of statement by prosecutor that verdict, recommendation of punishment, or other finding by jury is subject to review or correction by other authorities, 10 A.L.R.5th 700.