A.4)LAWYER IN CRIM. LITIGATION
(a) The Prosecutor
Problem pp. 482-4: college town about our size,
alum become famous actor, alleged to have raped a
student at or after a fraternity party after a BB game
 On the evidence given in the problem, should you
charge Stockton with rape?
 what standard for sufficiency of evidence?
 MRPC 3.6(a): no charge if not supported by
“probable cause”? What does that mean?
 n. 2. p. 486: must the prosecutor subjectively
believe that the suspect committed the crime? Is
that [plus evidence] the same as “probable cause
to believe”?
Problem pp. 482-4
c’t’d
 What evidence supports a charge?
 statement of the victim to detectives
 statement of suspect (through lawyer) that
they did have sex, etc.?
 suspect’s lawyer’s offer of minor unrelated
(?) guilty plea plus community service?
 What evidence favors the suspect?
 statement of suspect that it was consensual
 statement of neighbor?
 statement of victim that she had been
drinking?
Problem pp. 482-4 c’t’d
 If the charge is supported by “probable
cause”, are you obliged to file it? What is
the relevance of:
 political pressure (gov., u. pres., st. pty. chr.,
campaign donors, etc.)?
 majority of volunteered msgs. from public?
 prior relationship with suspect’s lawyer?
 threats from the latter source?
 disagreement among your people who are
working on the case, after “full review of
evidence”? Did you ask the right question?
 the concept of “prosecutorial discretion”?
Problem pp. 482-4 c’t’d
 If you do charge, are you obliged to disclose
to D’s counsel your conversation with your
neighbor? MRPC 3.8(d)

is this the same as the basis for overturning a
conviction – Brady v. Maryland, n. 4 p. 487?
 ABA Ethics Committee, Formal Opinion 09-454
(2009)
 language is from CPR 1969, but traces back to
1908 Canon 5 (Supp. p. 488)
 does it require that the evidence be “material” in
Brady sense?

Does this conversation qualify?
Problem c’t’d
 What about your statement after the
verdict (question (c) p. 484)? Have you in
effect confessed to a violation of Rule
3.8?
 “we never had enough on this guy”?
 “I never knew myself, so I thought a jury
should decide”?
A.4(b) Criminal Defense Atty
 Problem p. 489-90: now PD, asked to
represent a man accused of assault in an
assisted living center; he admits this one,
you believe him and that he is also guilty of
others
 you have been told about victim’s psych report
w/ confusion about who was in room; D says his
mom knows her, and could talk to her with a
wire; are you obliged to tell D about the report?
 if D asks you to send mom with a wire, and it
isn’t illegal, are you obliged to do it?
Defense Counsel, c’t’d
 Classic issue about cross-examination of
a witness whom you believe to be
truthful
 Classic issue about how you can defend
an accused whom you know to be guilty