2013 ODAA Conference2013 ODAA Conference

- ETHICS - - ETHICS -

from Investigation to from Investigation to Closing ArgumentClosing Argument

Daina VitolinsDaina Vitolins Leah Leah BolstadBolstad

Crook Co. DACrook Co. DA AUSAAUSA

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OUTLINEOUTLINE I. Ethics in Criminal InvestigationsI. Ethics in Criminal Investigations

II. Discovery Ethics – II. Discovery Ethics – BradyBrady, shifting , shifting stories, officer notes, stories, officer notes, impeachment impeachment of law enforcement witnessesof law enforcement witnesses

III. Requests for Defense Attorney III. Requests for Defense Attorney ReferralsReferrals

IV. Accusations of Vindictive ProsecutionIV. Accusations of Vindictive Prosecution

V. Communications with Adverse V. Communications with Adverse Witnesses/ExpertsWitnesses/Experts

– – BREAK – BREAK –

VI. Closing Argument Ethics – VI. Closing Argument Ethics –

Proper or Improper? Quiz timeProper or Improper? Quiz time 2

ORPC 3.8 Special ORPC 3.8 Special Responsibilities of a Responsibilities of a

ProsecutorProsecutor::

Refrain from prosecuting a charge Refrain from prosecuting a charge not supported by probable cause;not supported by probable cause;

Make timely disclosure to the Make timely disclosure to the defense of all evidence or defense of all evidence or information known that tends to information known that tends to mitigate or negate guilt.mitigate or negate guilt. 3

Investigation StageInvestigation StageORPC 8.4 – MISCONDUCTORPC 8.4 – MISCONDUCT

(a) It is professional misconduct for a lawyer to:(a) It is professional misconduct for a lawyer to:

(3) engage in conduct involving (3) engage in conduct involving dishonesty, dishonesty, fraud, deceit or fraud, deceit or misrepresentation.misrepresentation.

[SAFEHARBOR for Prosecutors]:[SAFEHARBOR for Prosecutors]:(b) It shall (b) It shall notnot be professional misconduct for a be professional misconduct for a lawyer to supervise lawful lawyer to supervise lawful covert activity*covert activity* in in the investigations of criminal law. the investigations of criminal law. * Covert Activity = an effort to obtain information on * Covert Activity = an effort to obtain information on unlawful activity through the use of misrepresentations unlawful activity through the use of misrepresentations or other subterfuge.or other subterfuge. 4

Investigation Stage:Investigation Stage:Supervising Covert Supervising Covert

Activity by LEActivity by LE

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Investigation Stage:Investigation Stage:Supervising Covert Supervising Covert

Activity by LEActivity by LEOSB Formal Opinion 2005-173OSB Formal Opinion 2005-173

Scenario #3 – Scenario #3 – Lawyer = DDA. Police Lawyer = DDA. Police officers ask her for advice officers ask her for advice about developing evidence of about developing evidence of illegal drug trafficking at illegal drug trafficking at specific residence. specific residence. Officers relay that neighbors Officers relay that neighbors have observed increased foot have observed increased foot traffic at certain times of day.traffic at certain times of day.DDA advises them to hire CI DDA advises them to hire CI to pose as customer, approach to pose as customer, approach house, ask to buy drugs. house, ask to buy drugs.

Rule 8.4(b) Safe HarborRule 8.4(b) Safe Harbor Covert activity may be Covert activity may be

commenced by a lawyer commenced by a lawyer or involve a lawyer as an or involve a lawyer as an advisor or supervisor advisor or supervisor only when the lawyer inonly when the lawyer in good faith good faith believes believes there is a there is a reasonable reasonable possibility possibility that that unlawful activity has unlawful activity has taken place, is taking taken place, is taking place, or will take place place, or will take place in the foreseeable in the foreseeable future.future.

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Discovery EthicsDiscovery EthicsORPC 3.8(b)ORPC 3.8(b)

Exculpatory evidenceExculpatory evidence: evidence that tends to show that : evidence that tends to show that the D is not guilty of the charged offense and is the D is not guilty of the charged offense and is materialmaterial to guilt/punishment to guilt/punishment Brady v. MarylandBrady v. Maryland, 373 U.S. 83 , 373 U.S. 83 (1963)(1963)

Impeachment evidenceImpeachment evidence: : materialmaterial evidence that evidence that demonstrates a witness’s bias, implicates a witness’s demonstrates a witness’s bias, implicates a witness’s credibility, and/or casts substantial doubt on the credibility, and/or casts substantial doubt on the accuracy of any prosecution evidenceaccuracy of any prosecution evidence

Giglio v. U.SGiglio v. U.S., 405 U.S. 150 (1972)., 405 U.S. 150 (1972)

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Discovery EthicsDiscovery EthicsBe Aware of Shifting Be Aware of Shifting

VersionsVersions

Witness Accounts evolve Witness Accounts evolve from interview 1, 2, 3, etcfrom interview 1, 2, 3, etc

Proffer sessions, progressive Proffer sessions, progressive truthtellingtruthtelling

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Discovery Ethics – Officer Discovery Ethics – Officer NotesNotes

State v. JohnsonState v. Johnson, 210 Or App , 210 Or App 733, 152 P3d 962(2007)733, 152 P3d 962(2007)

Notes are within the district Notes are within the district attorney’s controlattorney’s control

Do the notes contain relevant Do the notes contain relevant written or recorded statements??written or recorded statements??

Are the notes simply used to prepare Are the notes simply used to prepare the officer’s report??the officer’s report??

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Discovery EthicsDiscovery EthicsLegislative UpdateLegislative Update

SENATE BILL 492, 2013 Oregon Laws, SENATE BILL 492, 2013 Oregon Laws, Chapter 525 (Effective January 1, 2014)Chapter 525 (Effective January 1, 2014) State must provide any material or information that State must provide any material or information that

tends to tends to exculpate the defendant;exculpate the defendant; negate or mitigate the defendant’s guilt or punishment;negate or mitigate the defendant’s guilt or punishment; impeach a witness the State intends to call at trial.impeach a witness the State intends to call at trial.

Disclosure must occur without delay after Disclosure must occur without delay after arraignment and prior to the entry of a guilty plea;arraignment and prior to the entry of a guilty plea;

Nothing expands or imposes any obligation on the Nothing expands or imposes any obligation on the district attorney to provide material beyond that district attorney to provide material beyond that required by the Oregon or United States required by the Oregon or United States Constitutions.Constitutions.

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Discovery EthicsDiscovery EthicsImpeachment of Law Impeachment of Law

Enforcement WitsEnforcement Wits Scenario – officer accused of lyingScenario – officer accused of lying Define Impeaching Material & Gather It Define Impeaching Material & Gather It

(Henthorn)(Henthorn) Findings of misconduct that reflect on truthfulnessFindings of misconduct that reflect on truthfulness Any past or pending criminal chargeAny past or pending criminal charge Any credible allegation of misconduct pending Any credible allegation of misconduct pending

investigation investigation Any allegation made by state or federal prosecutor, Any allegation made by state or federal prosecutor,

judgethat reflects on truthfulness.judgethat reflects on truthfulness. When to disclose to the defense? When to disclose to the defense?

Investigated by IAInvestigated by IA Pending adjudicationPending adjudication Final adjudicationFinal adjudication 11

Lawyer Referral RequestsLawyer Referral Requests

My “friend” got arrested the other My “friend” got arrested the other night and he’s in jail. Know any night and he’s in jail. Know any good criminal defense attorneys?good criminal defense attorneys?

Think – Administration of JusticeThink – Administration of Justice Best Course? Best Course? refer to the OSB refer to the OSB

Lawyer Referral Program:Lawyer Referral Program: 503-684-3763503-684-3763 1-800-452-76361-800-452-7636 www.osbar.orgwww.osbar.org

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Vindictive ProsecutionVindictive Prosecution

ORPC 8.4 – MISCONDUCTORPC 8.4 – MISCONDUCT

(a) It is professional misconduct for a lawyer (a) It is professional misconduct for a lawyer to:to:

(4) engage in conduct that is prejudicial (4) engage in conduct that is prejudicial to to the administration of justice.the administration of justice.

Threatening to Charge a More Serious Offense? [See OSB Threatening to Charge a More Serious Offense? [See OSB Formal Opinion 2005-139]Formal Opinion 2005-139]Defendant may not be punished for exercising a statutory Defendant may not be punished for exercising a statutory or constitutional right. or constitutional right. Objective Proof of Actual VindictivenessObjective Proof of Actual Vindictiveness

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Responding to Vindictive Responding to Vindictive Prosecution AccusationsProsecution Accusations

Avoid “False Statements”Avoid “False Statements”ORPC 3.3ORPC 3.3

A LAWYER SHALL KNOW KNOWINGLY MAKE A A LAWYER SHALL KNOW KNOWINGLY MAKE A FALSE STATEMENT OF FACT OR LAW TO A FALSE STATEMENT OF FACT OR LAW TO A TRIBUNAL OR FAIL TO CORRECT A FALSE TRIBUNAL OR FAIL TO CORRECT A FALSE STATEMENT OF MATERIAL FACT OR LAW STATEMENT OF MATERIAL FACT OR LAW PREVIOUSLY MADE TO THE TRIBUNAL BY THE PREVIOUSLY MADE TO THE TRIBUNAL BY THE LAWYERLAWYER

ORPC 4.1 ORPC 4.1 A LAWYER SHALL NOT KNOWINGLY MAKE A FALSE A LAWYER SHALL NOT KNOWINGLY MAKE A FALSE

STATEMENT OF MATERIAL FACT OR LAW TO A STATEMENT OF MATERIAL FACT OR LAW TO A THIRD PERSONTHIRD PERSON

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Communications Communications w/Adverse w/Adverse

Expert WitnessesExpert WitnessesScenario: Scenario: •State criminal case. Per State criminal case. Per discovery rules, defense discovery rules, defense attorney provides DDA with attorney provides DDA with name and summary of expert name and summary of expert witness he intends to call as witness he intends to call as witness. DDA provides same witness. DDA provides same info to defense.info to defense.•Q: May DDA contact defense Q: May DDA contact defense expert re: subject of expert re: subject of anticipated testimony?anticipated testimony?•Q: May defense attorney Q: May defense attorney contact DDA’s expert re: contact DDA’s expert re: subject of anticipated subject of anticipated testimony?testimony?

Yes and Yes.Yes and Yes. ORPC 3.4 ORPC 3.4 Lawyer shall Lawyer shall

not knowingly disobey an not knowingly disobey an obligation under the rules of obligation under the rules of a tribunal.a tribunal.

OSB Formal Opinion OSB Formal Opinion 2005-1312005-131 Discovery Rules/Statutes Discovery Rules/Statutes

aim to prevent trial by aim to prevent trial by ambushambush

Discovery Rules in criminal Discovery Rules in criminal cases expressly require cases expressly require discovery of expert infodiscovery of expert info

Why the confusion from Why the confusion from defense? [OSB Formal Op. defense? [OSB Formal Op. 2005-132]2005-132] 15

Any Questions?Any Questions?

Call OSB! (503) 620-0222Call OSB! (503) 620-0222 Call Oregon DOJ AppellateCall Oregon DOJ Appellate Or … Or …

Leah K. Bolstad Daina VitolinsLeah K. Bolstad Daina VitolinsAssistant U.S. AttorneyAssistant U.S. Attorney District Attorney, District Attorney, Crook Co.Crook Co.

Gangs & Sex Trafficking Gangs & Sex Trafficking Crook Co. DA’s OfficeCrook Co. DA’s Office

(503) 727-1125(503) 727-1125 (541) 447-4158(541) 447-4158

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