How to be a Prosecution/PD Gunner? Forum

[Rocío]

When applying to a prosecutor's office, what should be the appropriate response to the following?:

You find out the only witness to your case just died of a heart attack. You are on your way to the courtroom to have the case dismissed when defense counsel comes to you and says his client wants to change his plea. What do you do? (My initial thought is that Brady requires disclosure of all material evidence. However, the defendant decided to admit guilt. Since this isn't going to trial the prosecutor won't need to prove the case beyond a reasonable doubt if the defendant pleads out, a prosecutor wouldn't have to tell the defendant pursuant to Brady. But then ABA Rule 3.8 says prosecutors can't bring cases not supported by probable cause, and now the only witness to support that probable cause is gone. What is a proper response?)

What an awful question! Which office asks this? And why are we going to trial on a case with no officer (or is the officer the one who died of a heart attack?)

Well, this specific hypo's come up a bunch of times on this board (maybe even this thread? I know I've seen it here before), so either people here just keep applying to the same office that uses it, or it's relatively common.

(My understanding was that Brady requires disclosure of exculpatory evidence - but the witness dying isn't exculpatory, because it doesn't change the likelihood that the def committed the crime, just the prosecution's ability to prove it. Not sure how the witness dying ties into probable cause, though - never took Crim Pro! My theory is when in doubt, disclose. But also, most interviewers want to see your thought process more than they want you to come up with a right answer.)

You absolutely would need to disclose the fact that a key witness died. That is the definition of exculpatory evidence. If you need to disclose impeachment material pursuant to Brady, of course you would need to tell the defense that your only witness died. Your Brady obligations don't dissipate if the defendant wants to plead guily. I was asked this question by a couple of prosecutor offices and I explained that I would need to disclose pursuant to Brady -- and I got callbacks from those offices.

Your job as a prosecutor is to "do justice," and so you really need to make sure that you nail the ethical hypos in your interviews. If you don't know, say you would consult a supervisor if in doubt.

[Anonymous User]

When applying to a prosecutor's office, what should be the appropriate response to the following?:

You find out the only witness to your case just died of a heart attack. You are on your way to the courtroom to have the case dismissed when defense counsel comes to you and says his client wants to change his plea. What do you do? (My initial thought is that Brady requires disclosure of all material evidence. However, the defendant decided to admit guilt. Since this isn't going to trial the prosecutor won't need to prove the case beyond a reasonable doubt if the defendant pleads out, a prosecutor wouldn't have to tell the defendant pursuant to Brady. But then ABA Rule 3.8 says prosecutors can't bring cases not supported by probable cause, and now the only witness to support that probable cause is gone. What is a proper response?)

What an awful question! Which office asks this? And why are we going to trial on a case with no officer (or is the officer the one who died of a heart attack?)

Well, this specific hypo's come up a bunch of times on this board (maybe even this thread? I know I've seen it here before), so either people here just keep applying to the same office that uses it, or it's relatively common.

(My understanding was that Brady requires disclosure of exculpatory evidence - but the witness dying isn't exculpatory, because it doesn't change the likelihood that the def committed the crime, just the prosecution's ability to prove it. Not sure how the witness dying ties into probable cause, though - never took Crim Pro! My theory is when in doubt, disclose. But also, most interviewers want to see your thought process more than they want you to come up with a right answer.)

You absolutely would need to disclose the fact that a key witness died. That is the definition of exculpatory evidence. If you need to disclose impeachment material pursuant to Brady, of course you would need to tell the defense that your only witness died. Your Brady obligations don't dissipate if the defendant wants to plead guily. I was asked this question by a couple of prosecutor offices and I explained that I would need to disclose pursuant to Brady -- and I got callbacks from those offices.

Your job as a prosecutor is to "do justice," and so you really need to make sure that you nail the ethical hypos in your interviews. If you don't know, say you would consult a supervisor if in doubt.

1) That's not the definition of exculpatory evidence
2) Defendants are admonished and SWEAR that they can only plead guilty if they're actually guilty. Their guilt is not dependent on the existence of a witness.
3) Justice is not letting a guilty person off the hook because the witness died.

I certainly can't stand overzealous prosecutors, BUT that doesn't mean you shouldn't take a valid guilty plea if the defendant wants to plead guilty. The best answer is that you would ask your supervising attorney, because depending on the case, you may need to dismiss or you may need to proceed.

[Anonymous User]

Well, this specific hypo's come up a bunch of times on this board (maybe even this thread? I know I've seen it here before), so either people here just keep applying to the same office that uses it, or it's relatively common.

(My understanding was that Brady requires disclosure of exculpatory evidence - but the witness dying isn't exculpatory, because it doesn't change the likelihood that the def committed the crime, just the prosecution's ability to prove it. Not sure how the witness dying ties into probable cause, though - never took Crim Pro! My theory is when in doubt, disclose. But also, most interviewers want to see your thought process more than they want you to come up with a right answer.)

This was me, and to clarify: (as I understand it) whether or not the witness is alive or dead isn't exculpatory, because exculpatory evidence is evidence that clears or tends to clear the defendant of guilt. If the witness was going to say, credibly, "I was there, and I saw the defendant stick the knife in the guy," the fact that the witness is dead doesn't make the defendant less likely to be guilty. The prosecutor just can't use that witness to prove the defendant's guilt. (Now, if you found out the witness had previously said he'd done it, or previously falsely accused someone of murder, or whatever, that would make the defendant less likely to be guilty = exculpatory.) To put it another way: death doesn't change the witness's credibility, just their availability.

(As for impeachment - is the fact that a witness is dead really impeachment material? And isn't impeachment material disclosed under Giglio, not Brady?)

I'm not saying a prosecutor shouldn't disclose the dead witness in this situation - I just think the point of the hypo is that it's not a straightforward Brady thing.

[Rocío]

1) That's not the definition of exculpatory evidence
2) Defendants are admonished and SWEAR that they can only plead guilty if they're actually guilty. Their guilt is not dependent on the existence of a witness.
3) Justice is not letting a guilty person off the hook because the witness died.

I certainly can't stand overzealous prosecutors, BUT that doesn't mean you shouldn't take a valid guilty plea if the defendant wants to plead guilty. The best answer is that you would ask your supervising attorney, because depending on the case, you may need to dismiss or you may need to proceed.

Nice use of anon. Exculpatory evidence is evidence favorable to the defendant, which clears or tends to clear the defendant of guilt. I think Brady would cover the death of the only witness. Where the prosecution fails to disclose exculpatory evidence, a conviction must be overturned if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 (1985). If the prosecution withholds the fact that the only witness died - where that witness was necessary to proceed to trial - then there is a very strong argument for overturning the plea, in my humble opinion. In addition, prosecutors have special disclosure obligations under the relevant professional rules of responsibility. For both of these reasons, prosecutors who failed to reveal this information to the defense would be walking into a minefield.

Also, defendants plead guilty all the time despite protesting their innocence. Courts can accept guilty pleas even if defendants state that they are innocent during their plea colloquy - these are called Alford pleas.

[Anonymous User]

1) That's not the definition of exculpatory evidence
2) Defendants are admonished and SWEAR that they can only plead guilty if they're actually guilty. Their guilt is not dependent on the existence of a witness.
3) Justice is not letting a guilty person off the hook because the witness died.

I certainly can't stand overzealous prosecutors, BUT that doesn't mean you shouldn't take a valid guilty plea if the defendant wants to plead guilty. The best answer is that you would ask your supervising attorney, because depending on the case, you may need to dismiss or you may need to proceed.

Nice use of anon. Exculpatory evidence is evidence favorable to the defendant, which clears or tends to clear the defendant of guilt. I think Brady would cover the death of the only witness. Where the prosecution fails to disclose exculpatory evidence, a conviction must be overturned if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 (1985). If the prosecution withholds the fact that the only witness died - where that witness was necessary to proceed to trial - then there is a very strong argument for overturning the plea, in my humble opinion. In addition, prosecutors have special disclosure obligations under the relevant professional rules of responsibility. For both of these reasons, prosecutors who failed to reveal this information to the defense would be walking into a minefield.

Also, defendants plead guilty all the time despite protesting their innocence. Courts can accept guilty pleas even if defendants state that they are innocent during their plea colloquy - these are called Alford pleas.

Thank you. Anonymity is like a warm blanket, you know. I respectfully disagree to your claim that the death of a witness is evidence that clears the defendant of guilt because 1) the defendant's guilt exists outside of the existence of a witness and 2) the death of a witness is not actually evidence. The Bagley quote, divorced from context, is not dispositive of the issue. I also don't believe the previously cited professional responsibly rules would require disclosure if there's a defendant who wants to plead guilty.

[Anonymous User]

got a so called "second interview" for San Diego post bar, though I didn't go through the screener

email notifying me also said that this is a "volunteer program" I hope that is a freaking mistake because their website says Fall post-bar is paid.

According to my school's OCI (and from talking to people who have been through the SD post bar clerk program) it is paid. Whether they have a separate post bar program that is unpaid, I don't know, but I doubt it. Maybe double check their website (or whatever avenue you went through) to make sure you applied for what you thought you applied for?

Talked to the guy who schedules the interviews. He mistakenly put my application in the Spring 2013 post-bar pile instead of the Fall 2013 post-bar pile.

[robin600]

Anyone heard from EJW interviews yet?

Yup. Moving forward with CPCS!

Anonymous poster above. Just heard back from Miami, too. Second rounds.

Grats! im assuming youre a 3L? any 2Ls hear?

[Borhas]

1) That's not the definition of exculpatory evidence
2) Defendants are admonished and SWEAR that they can only plead guilty if they're actually guilty. Their guilt is not dependent on the existence of a witness.
3) Justice is not letting a guilty person off the hook because the witness died.

I certainly can't stand overzealous prosecutors, BUT that doesn't mean you shouldn't take a valid guilty plea if the defendant wants to plead guilty. The best answer is that you would ask your supervising attorney, because depending on the case, you may need to dismiss or you may need to proceed.

Nice use of anon. Exculpatory evidence is evidence favorable to the defendant, which clears or tends to clear the defendant of guilt. I think Brady would cover the death of the only witness. Where the prosecution fails to disclose exculpatory evidence, a conviction must be overturned if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 (1985). If the prosecution withholds the fact that the only witness died - where that witness was necessary to proceed to trial - then there is a very strong argument for overturning the plea, in my humble opinion. In addition, prosecutors have special disclosure obligations under the relevant professional rules of responsibility. For both of these reasons, prosecutors who failed to reveal this information to the defense would be walking into a minefield.

Also, defendants plead guilty all the time despite protesting their innocence. Courts can accept guilty pleas even if defendants state that they are innocent during their plea colloquy - these are called Alford pleas.

Thank you. Anonymity is like a warm blanket, you know. I respectfully disagree to your claim that the death of a witness is evidence that clears the defendant of guilt because 1) the defendant's guilt exists outside of the existence of a witness and 2) the death of a witness is not actually evidence. The Bagley quote, divorced from context, is not dispositive of the issue. I also don't believe the previously cited professional responsibly rules would require disclosure if there's a defendant who wants to plead guilty.

it's not evidence, but if you don't have admissible evidence for the trial, then there are problems continuing the case. If I were a prosecutor, my answer would depend on the other evidence involved. If I had other evidence that could realistically amount to BRD or PC for the crime then I don't think it would be wrong to not mention it to the defender.

[the lantern]

1) I don't think that exculpatory evidence means what you think it does if you think that a witness not being available falls within that category 2) Asked a friend of mine (a reasonable prosecutor -- the only one I've ever met) and he said that while he thinks not disclosing and accepting the plea is the wrong thing to do, he would without hesitation answer the opposite because that is what they want

[lawstudentabc123]

I thought Brady only requires disclosure before trial, and a trial must occur for disclosure to be required. Ethically, however, I think a prosecutor would probably need to disclose if a witness died (i.e. the probable cause issue, etc).

edit: I should add this isn't what Brady stands for, but I'm pretty sure the case law that builds on Brady deals with this, particularly in witness credibility issues.

[Anonymous User]

1) I don't think that exculpatory evidence means what you think it does if you think that a witness not being available falls within that category 2) Asked a friend of mine (a reasonable prosecutor -- the only one I've ever met) and he said that while he thinks not disclosing and accepting the plea is the wrong thing to do, he would without hesitation answer the opposite because that is what they want

I'm curious as to why your friend thinks it's the wrong thing to do. I recently heard about a similar situation and thought that taking the plea was the right thing to do (rapist held victim for 4 days and violated her repeatedly; no good forensic evidence and the witness had a psychological break down the night before trial and couldn't testify).

Did you friend offer any specific reasons as to why taking the plea was not the right thing to do?

[Anonymous User]

I'm getting worried. I have one summer offer from EJW and 4 still pending. Two of which said they'd let me know by the end of this week...reject?

[Anonymous User]

I'm the anon who posted the dead witness hypo.

Went through with my interview for a DA office in a conservative western county (think Arizona or
a rural Nevada/California). A variation came up and I opted to disclose; the interviewer commended me for choosing correctly.

[Displeased]

I can't imagine prosecutors/PDs expect you to have the perfect answer to that hypo.

Even an experienced trial attorney probably wouldn't know the exact answer to that off the top of their head. As long as you mention the relevant things (Brady, whether you have probable cause to continue prosecution, etc), and can defend your position, you probably won't get dinged.

[Anonymous User]

anyone know if Bronx, Brooklyn, Harlem or Legal Aid have accepted people for 2L internships yet? I've interviewed with Brooklyn but haven't heard a word from any of the others.

[Arsenals]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

[Lord Randolph McDuff]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

Why are you applying to a PD's office if you haven't done any mock trial? I'm already assuming that you view the PD's office as a fall back because you haven't seemed to prepare for the job. That probably is going to kill your chances.

Don't even know what to tell you-- where to begin? There is a real art to trials. They teach classes on it and stuff. I guess go buy a trial ad book and read the entire thing for starters..?

[Arsenals]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

Why are you applying to a PD's office if you haven't done any mock trial? I'm already assuming that you view the PD's office as a fall back because you haven't seemed to prepare for the job. That probably is going to kill your chances.

Don't even know what to tell you-- where to begin? There is a real art to trials. They teach classes on it and stuff. I guess go buy a trial ad book and read the entire thing for starters..?

It is not a fall back option. I have been focused on public interest work and had several internships with legal services type offices. Those offices obviously dont have budgets to hire right now, but the PDs office does and at this point I would say it is my first choice. i just didn't get involved with my school's mock trial team 1L year and then it was too late...

Thanks for the side of advice with all that criticism.

[Borhas]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

step 1: look up pertinent jury instructions
step 2: think of theory of defense that jives with your facts and the jury instructions
step 3: suppression motion

that should get you started

[Anonymous User]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

NJ?

[Anonymous User]

Anyone heard from EJW interviews yet?

Yup. Moving forward with CPCS!

Anonymous poster above. Just heard back from Miami, too. Second rounds.

Grats! im assuming youre a 3L? any 2Ls hear?

Poster above, who mentioned CPCS and Miami. Yes, I'm a 3L.

[Arsenals]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

NJ?

Nope. Are you NJ and doing something similar?

[Anonymous User]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

NJ?

Nope. Are you NJ and doing something similar?

Yessir, almost identical instructions. Interesting!

[Arsenals]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

NJ?

Nope. Are you NJ and doing something similar?

Yessir, almost identical instructions. Interesting!

How are you preparing?

[Lord Randolph McDuff]

I'm a 3L with an interview at a state's PD office. They sent me a 2 page hypo in advance. They told me i should be prepared to discuss theory of defense, investigation needs, potential pretrial motions, and potential evidentiary issues. I also need to prepare a 10 minute closing. I have not been on mock trial or anything like that. Where should I start to begin preparing?

Nervous!

Why are you applying to a PD's office if you haven't done any mock trial? I'm already assuming that you view the PD's office as a fall back because you haven't seemed to prepare for the job. That probably is going to kill your chances.

Don't even know what to tell you-- where to begin? There is a real art to trials. They teach classes on it and stuff. I guess go buy a trial ad book and read the entire thing for starters..?

It is not a fall back option. I have been focused on public interest work and had several internships with legal services type offices. Those offices obviously dont have budgets to hire right now, but the PDs office does and at this point I would say it is my first choice. i just didn't get involved with my school's mock trial team 1L year and then it was too late...

Thanks for the side of advice with all that criticism.

Yeah, I'm usually not so critical. My apologies.

Maybe where you live the PD's need people, but in my neck of the woods its really competitive and you would be interviewing with people that literally already had trials under their belt (I'm not talking about mock trials either---student practice act). They could hit the ground running, while you would be asking open ended questions on cross and fumbling through voir dires. PD offices are all trials, all the time. You haven't taken trial ad?

I'm doing it again. I'm sorry. GL