1. 2013 ODAA Conference - ETHICS - from Investigation to Closing Argument Daina VitolinsLeah Bolstad Crook Co. DAAUSA 1

2. OUTLINE I. Ethics in Criminal Investigations I. Ethics in Criminal Investigations II. Discovery Ethics – Brady, shifting stories, officer notes, impeachment of law enforcement witnesses II. Discovery Ethics – Brady, shifting stories, officer notes, impeachment of law enforcement witnesses III. Requests for Defense Attorney Referrals III. Requests for Defense Attorney Referrals IV. Accusations of Vindictive Prosecution IV. Accusations of Vindictive Prosecution V. Communications with Adverse Witnesses/Experts V. Communications with Adverse Witnesses/Experts – BREAK – VI. Closing Argument Ethics – VI. Closing Argument Ethics – Proper or Improper? Quiz time 2

3. ORPC 3.8 Special Responsibilities of a Prosecutor: Refrain from prosecuting a charge not supported by probable cause; Refrain from prosecuting a charge not supported by probable cause; Make timely disclosure to the defense of all evidence or information known that tends to mitigate or negate guilt. Make timely disclosure to the defense of all evidence or information known that tends to mitigate or negate guilt. 3

4. Investigation Stage ORPC 8.4 – MISCONDUCT (a) It is professional misconduct for a lawyer to: (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. [SAFEHARBOR for Prosecutors]: (b) It shall not be professional misconduct for a lawyer to supervise lawful covert activity* in the investigations of criminal law. * Covert Activity = an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. 4

5. Investigation Stage: Supervising Covert Activity by LE 5

6. OSB Formal Opinion 2005-173 Scenario #3 – Lawyer = DDA. Police officers ask her for advice about developing evidence of illegal drug trafficking at specific residence. Officers relay that neighbors have observed increased foot traffic at certain times of day. DDA advises them to hire CI to pose as customer, approach house, ask to buy drugs. Rule 8.4(b) Safe Harbor Covert activity may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place, or will take place in the foreseeable future. 6

7. Discovery Ethics ORPC 3.8(b) Exculpatory evidence: evidence that tends to show that the D is not guilty of the charged offense and is material to guilt/punishment Brady v. Maryland, 373 U.S. 83 (1963) Exculpatory evidence: evidence that tends to show that the D is not guilty of the charged offense and is material to guilt/punishment Brady v. Maryland, 373 U.S. 83 (1963) Impeachment evidence: material evidence that demonstrates a witness’s bias, implicates a witness’s credibility, and/or casts substantial doubt on the accuracy of any prosecution evidence Impeachment evidence: material evidence that demonstrates a witness’s bias, implicates a witness’s credibility, and/or casts substantial doubt on the accuracy of any prosecution evidence Giglio v. U.S., 405 U.S. 150 (1972) 7

8. Discovery Ethics Be Aware of Shifting Versions Witness Accounts evolve from interview 1, 2, 3, etc Witness Accounts evolve from interview 1, 2, 3, etc Proffer sessions, progressive truthtelling Proffer sessions, progressive truthtelling 8

9. Discovery Ethics – Officer Notes State v. Johnson, 210 Or App 733, 152 P3d 962(2007) Notes are within the district attorney’s control Notes are within the district attorney’s control Do the notes contain relevant written or recorded statements?? Do the notes contain relevant written or recorded statements?? Are the notes simply used to prepare the officer’s report?? Are the notes simply used to prepare the officer’s report?? 9

10. Discovery Ethics Legislative Update SENATE BILL 492, 2013 Oregon Laws, Chapter 525 (Effective January 1, 2014) SENATE BILL 492, 2013 Oregon Laws, Chapter 525 (Effective January 1, 2014) State must provide any material or information that tends to State must provide any material or information that 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 arraignment and prior to the entry of a guilty plea; Disclosure must occur without delay after arraignment and prior to the entry of a guilty plea; Nothing expands or imposes any obligation on the district attorney to provide material beyond that required by the Oregon or United States Constitutions. Nothing expands or imposes any obligation on the district attorney to provide material beyond that required by the Oregon or United States Constitutions. 10

11. Discovery Ethics Impeachment of Law Enforcement Wits Scenario – officer accused of lying Scenario – officer accused of lying Define Impeaching Material & Gather It (Henthorn) Define Impeaching Material & Gather It (Henthorn) Findings of misconduct that reflect on truthfulness Findings of misconduct that reflect on truthfulness Any past or pending criminal charge Any past or pending criminal charge Any credible allegation of misconduct pending investigation Any credible allegation of misconduct pending investigation Any allegation made by state or federal prosecutor, judgethat reflects on truthfulness. Any allegation made by state or federal prosecutor, judgethat reflects on truthfulness. When to disclose to the defense? When to disclose to the defense? Investigated by IA Investigated by IA Pending adjudication Pending adjudication Final adjudication Final adjudication 11

12. Lawyer Referral Requests My “friend” got arrested the other night and he’s in jail. Know any good criminal defense attorneys? My “friend” got arrested the other night and he’s in jail. Know any good criminal defense attorneys? Think – Administration of Justice Think – Administration of Justice Best Course?  refer to the OSB Lawyer Referral Program: Best Course?  refer to the OSB Lawyer Referral Program: 503-684-3763 503-684-3763 1-800-452-7636 1-800-452-7636 www.osbar.org www.osbar.org 12

13. Vindictive Prosecution ORPC 8.4 – MISCONDUCT (a) It is professional misconduct for a lawyer to: (4) engage in conduct that is prejudicial to the administration of justice. (4) engage in conduct that is prejudicial to the administration of justice. Threatening to Charge a More Serious Offense? [See OSB Formal Opinion 2005-139] Threatening to Charge a More Serious Offense? [See OSB Formal Opinion 2005-139] Defendant may not be punished for exercising a statutory or constitutional right. Defendant may not be punished for exercising a statutory or constitutional right. Objective Proof of Actual Vindictiveness Objective Proof of Actual Vindictiveness 13

14. Responding to Vindictive Prosecution Accusations Avoid “False Statements” ORPC 3.3 ORPC 3.3 A LAWYER SHALL KNOW KNOWINGLY MAKE A FALSE STATEMENT OF FACT OR LAW TO A TRIBUNAL OR FAIL TO CORRECT A FALSE STATEMENT OF MATERIAL FACT OR LAW PREVIOUSLY MADE TO THE TRIBUNAL BY THE LAWYER A LAWYER SHALL KNOW KNOWINGLY MAKE A FALSE STATEMENT OF FACT OR LAW TO A TRIBUNAL OR FAIL TO CORRECT A FALSE STATEMENT OF MATERIAL FACT OR LAW PREVIOUSLY MADE TO THE TRIBUNAL BY THE LAWYER ORPC 4.1 ORPC 4.1 A LAWYER SHALL NOT KNOWINGLY MAKE A FALSE STATEMENT OF MATERIAL FACT OR LAW TO A THIRD PERSON A LAWYER SHALL NOT KNOWINGLY MAKE A FALSE STATEMENT OF MATERIAL FACT OR LAW TO A THIRD PERSON 14

15. Communications w/Adverse Expert Witnesses Scenario: State criminal case. Per discovery rules, defense attorney provides DDA with name and summary of expert witness he intends to call as witness. DDA provides same info to defense. State criminal case. Per discovery rules, defense attorney provides DDA with name and summary of expert witness he intends to call as witness. DDA provides same info to defense. Q: May DDA contact defense expert re: subject of anticipated testimony? Q: May DDA contact defense expert re: subject of anticipated testimony? Q: May defense attorney contact DDA’s expert re: subject of anticipated testimony? Q: May defense attorney contact DDA’s expert re: subject of anticipated testimony? Yes and Yes. ORPC 3.4  Lawyer shall not knowingly disobey an obligation under the rules of a tribunal. OSB Formal Opinion 2005-131 Discovery Rules/Statutes aim to prevent trial by ambush Discovery Rules in criminal cases expressly require discovery of expert info Why the confusion from defense? [OSB Formal Op. 2005-132] 15

16. Any Questions? Call OSB! (503) 620-0222 Call OSB! (503) 620-0222 Call Oregon DOJ Appellate Call Oregon DOJ Appellate Or … Or … Leah K. Bolstad Daina Vitolins Leah K. Bolstad Daina Vitolins Assistant U.S. AttorneyDistrict Attorney, Crook Co. Gangs & Sex Trafficking Crook Co. DA’s Office (503) 727-1125(541) 447-4158 16