(a) The Prosecutor Problem pp : 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 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 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 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 (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 : 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