Prosecutor's Duty to Notify Appropriate Persons of Dismissal of Criminal Charges
Adopted: January 13, 1995
Opinion rules that a prosecutor must notify defense counsel, jail officials, or other appropriate persons to avoid the unnecessary detention of a criminal defendant after the charges against the defendant have been dismissed by the prosecutor.
Inquiry #1:
Defendant is being held in pretrial detention because he is unable to make bond. He is represented by Defense Lawyer. Prosecutor files a notice of voluntary dismissal of all charges pending against Defendant, pursuant to G.S. §15A-931, without placing the case on a published trial calendar. Prosecutor has access to a list of persons held in jail and the charges under which they are being held. This list includes an entry for Defendant. Is Prosecutor required by the Rules of Professional Conduct to serve Defense Lawyer with a copy of the written dismissal?
Opinion #1:
Yes, the prosecutor is required to either serve Defense Lawyer with a copy of the written dismissal or take other steps to notify Defense Lawyer, jail officials, or other appropriate persons in order to avoid the unnecessary detention of Defendant.
A lawyer has a duty to avoid conduct that is prejudicial to the administration of justice pursuant to Rule 1.2(d) of the Rules of Professional Conduct. Prosecutors have a special duty "to seek justice, not merely to convict." See comment to Rule 7.3. In particular, Rule 7.3(d) requires a prosecutor to make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigate the offense. The spirit, if not the letter of these rules, when considered in pari materia, calls for a prosecutor to take reasonable steps to ensure that a criminal defendant is not held in jail without charge.
Inquiry #2:
Is Prosecutor required by the Rules of Professional Conduct to provide the jail with a certified copy of the dismissal?
Opinion #2:
See opinion #1 above.
Inquiry #3:
Would the response to inquiry #2 be different if Defendant was unrepresented?
Opinion #3:
No. See opinion #1 above.