Prosecutors, Ethics, and Plea Bargaining in Misdemeanor Cases

The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors. ­

The criticism. ABA Formal Opinion 486 (May 9, 2019) cites legions of research supporting the following observations:

  • Misdemeanors comprise 80 percent of state criminal dockets.
  • The number of misdemeanor prosecutions has doubled since 1972.
  • This expansion has had a “‘concentrated impact on communities of color.’”
  • Most defendants plead guilty at the first setting of the case.
  • Dockets are overcrowded, and each individual case may be afforded only a few minutes.
  • Collateral consequences resulting from misdemeanor convictions have expanded.
  • Some prosecutors are negotiating plea agreements in a manner that is inconsistent with the accused’s right to counsel and the duties set forth in the Model Rules of Professional Conduct.

The ethical issues. The opinion cites the following methods of negotiated plea agreements that have been documented and that violate the model rules:

  • Requiring or encouraging plea negotiations with a prosecutor before the right to counsel has been raised;
  • Using delay or the prospect of a harsher sentence to dissuade the accused from invoking the right to counsel;
  • Gathering arrestees into court and instructing them as a group, prior to any advice regarding right to counsel or other rights, that they must tell the clerk how they intent to plead;
  • Using forms to obtain waiver of the right to counsel and other rights as a condition of negotiating a plea or following a negotiation without confirming the defendant’s understanding;
  • Permitting police officers to act as prosecutors and negotiate pleas;
  • Advising defendants of the right to counsel but failing to provide a procedure for asserting or waiving the right before plea negotiations; and
  • Failing to inform indigent defendants about how to request waiver of fees for court-appointed counsel.

Rule 3.8. The opinion focuses on how a prosecutor’s special obligations under Model Rule 3.8 affect her role in negotiating plea bargains for misdemeanor offenses. Though Rule 3.8 of the North Carolina Rules of Professional Conduct differs in some respects from the model rule, none of those differences are pertinent to the provisions discussed in the opinion.

No pc, no prosecution. The first relevant obligation under Rule 3.8 is that the prosecutor refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. The opinion deems it “axiomatic that a prosecutor must actually exercise informed discretion with respect to the selection and prosecution of each charge.” Formal Opinion 486 at 8. Thus, it states, “a prosecutor may not negotiate pleas without first making an independent assessment of the relevant facts and law for each charge.” Id. The opinion contemplates that this process may require more than reviewing the citation and police report, noting:

[I]n some jurisdictions the volume of misdemeanor cases and their relatively lower stakes may dispose a prosecutor to rely uncritically on a police report or citation and a criminal background check. Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused.


The opinion goes on to state that if a prosecutor’s workload is too heavy to permit this sort of independent assessment, that fact may prevent the prosecutor from acting with the competence and diligence required by Rules 1.1 and 1.3.

Assure right to counsel and do not seek waivers from unrepresented persons. Rule 3.8(b) requires a prosecutor to make reasonable efforts to assure that an accused person has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel. Rule 3.8(c) prohibits a prosecutor from seeking to obtain from an unrepresented person a waiver of important pretrial rights. The opinion concludes that under these rules, a prosecutor may not make a plea offer or seek a waiver of the right to counsel before making reasonable efforts to ensure that the accused has been advised of the right to counsel, the procedure for obtaining counsel, and has been given a reasonable opportunity to exercise that right. Moreover, a prosecutor may not pressure, advise, or induce acceptance of a plea or waiver of the right to counsel while an unrepresented accused is deciding whether to invoke or has initiated the process to invoke that right.

Other rules governing plea bargaining with an unrepresented accused. The opinion also addresses constraints that Model Rules 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Persons) and 8.4(c) (Misconduct (dishonesty, fraud, deceit or misrepresentation)) place on a prosecutor’s conduct when negotiating a plea bargain with an unrepresented person. Here too, the corresponding North Carolina Rules do not differ from the provisions of the model rules discussed in the opinion in any significant respect.

The opinion emphasizes the vulnerability of an unrepresented person who “faces the vast array of resources at the prosecutor’s disposal as well as the prosecutor’s legal expertise at a moment in which, even in misdemeanor cases, substantial liberty interests and financial security are in jeopardy.” Id. at 14. It also notes the adverse interests of the prosecutor and the accused. Accordingly, it concludes, a prosecutor may not offer “legal advice regarding the substance of the plea, the process of its negotiation and entry, or the consequences incident to conviction.” Id. Yet the prosecutor “can and sometimes must disclose material information regarding the substance of the plea, the process of its negotiation and entry, and known consequences of a conviction to an unrepresented person.” Id. (emphasis added).

To elucidate the distinction between the prohibition and affirmative obligation, the opinion states that when “a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea,” the following statements would constitute prohibited misrepresentations:

“Take this plea for time served and you are done, you can go home now.”

“This is a suspended sentence, so as long as you comply with its terms, you avoid jail time with this plea.”

“You only serve three months on this plea, that’s the sentence.”

Id. at 15.

A few thoughts. Some of the problems identified in the first part of the opinion may not exist in North Carolina. For one thing, law enforcement officers never serve as prosecutors here, though they may be afforded input in the plea bargaining process.

For another, district court judges routinely advise defendants of the right to counsel at the first setting of a misdemeanor case and have formalized procedures for accepting waivers of the right to appointed counsel and the right to all counsel.

That’s not to say that North Carolina’s procedures are perfect. In some instances, counsel could be appointed even earlier. G.S. 7A-146 permits a chief district court judge to designate certain magistrates to appoint counsel, and chief district court judges in a handful of mostly urban districts have granted magistrates that authority. With the proper authorization, magistrates can appoint counsel as early as a person’s initial appearance.

Moving beyond systemic issues and on to the specific ethical advice, I can imagine a prosecutor finding some aspects of the opinion impractical and frustratingly contradictory. The opinion faults prosecutors for relying uncritically on police reports and citations. Yet, what are they to do? Conduct a separate investigation of the hundreds of misdemeanor offenses that appear on a daily district court docket?

The opinion states that prosecutors must not seek to obtain a waiver of important pretrial rights from an unrepresented person. Suppose an unrepresented person has been jailed for several days on a misdemeanor charge and the State is agreeable to a sentence of time served. The opinion suggests that the prosecutor must refrain from extending such an offer until counsel is appointed. Yet, absent intervention from the court, this may result in the person spending additional days in jail.

Finally, there isn’t much daylight between the opinion’s dos and don’ts of plea bargaining with an unrepresented person. In addition, a North Carolina prosecutor’s ability to disclose known consequences is limited by formal ethics opinion RPC 189, which rules that members of a district attorney’s staff may not give legal advice about pleas to lesser included infractions to an unrepresented person charged with a traffic infraction.

Your impressions. If you have thoughts about either part of the opinion, please share them using the comment feature below.




18 thoughts on “Prosecutors, Ethics, and Plea Bargaining in Misdemeanor Cases”

  1. Two questions from a crime reporter:

    1.) I recently published a piece about a young man who was charged with one count of underage drinking and driving and one count of open container. The suspect wrecked his vehicle, which was witnessed by an officer who received a Giglio Order (under highly questionable pretense). That officer radioed the accident in, approached, and as the driver stumbled his way out, the officer told dispatch they appeared intoxicated but that a medic was not needed. As a license plate check on the suspect’s tag was ran, and the witnessing officer was soon relieved from the scene when two other officers arrived.

    Before long, the officers detected the odor of alcohol on the young man, witnessed him trip while walking, saw an open container in the console of the truck, conducted two field sobriety tests which the suspect did poorly on, obtained an admission of drinking and got a .13 and .14 from the young man’s breathalyzer results.

    The young man was taken to jail, processed, and taken to the magistrate’s office. Upon listening to the officer’s testimony, he concluded there was no probable cause for the arrest, due to the witnessing deputy first observing the suspect being “in the driver’s seat of the truck.” The magistrate explained that the Giglio Order that was previously placed on the deputy by the District Attorney’s office was still in effect. The suspect was released from handcuffs and was no longer charged with a driving while impaired offense. Officers transported him back to the detention center to get his personal belongings. The young man was issued a citation for transporting an open container in a vehicle.

    Aren’t magistrates supposed to be independent quasi-judicial officials? If they are the “gatekeepers of justice”, as I’ve so often heard them called before, how could he determine no probable cause? Does this official police report not call into question the ‘wall of separation’ that’s supposed to exist between the DA’s office and magistrates?

    Please go here for more info:

    2.) What’s the significance of a prosecutor waiting three months to file a charge against an officer who killed someone they were transporting home? In a case I reported on earlier tonight, I found that this same DA issued an indictment on a sheriff’s deputy on Monday — for misdemeanor death by vehicle. SHP found that the deputy was driving in excess of 80 mph in a 55 mph zone. The transport van flipped three times after hydroplaning and the passenger died later that night due to severe injuries, while the deputy sustained very minor ones. In 2017, a strikingly similar incident occurred, and the same DA did the same thing, pretty much. What’s the significance of waiting three months? Why no speeding charges? Why no reckless driving? Why no felony? Unsafe movement? Is this a case of criminalizing negligence? That’s never been a sound basis for a criminal case.

    See here for more:

  2. In addition to the procedures identified in the ABA opinion, I heard a suggestion that may help address the pressure on incarcerated misdemeanor defendants to plead guilty to time served: Unsecure the bond before the defendant decides. This approach would reduce the pressure on incarcerated misdemeanor defendants to plead guilty just to get out of jail. Some defendants may still agree to a time-served guilty plea (after a proper waiver of counsel) to avoid the possibility of greater sanctions as well as the disruption of additional court proceedings, while those who want to contest the charges would not have to exchange their liberty for the opportunity to do so.

  3. I think this is common sense until you get to the part about “a prosecutor may NOT offer legal advice…” but a prosecutor “can and sometimes MUST disclose…”. Talk about muddy waters. What is material? Informing a defendant that a plea for time served allows him to leave jail today is material, but evidently that’s forbidden and they should now sit in jail, in some cases for longer than they could even serve if found guilty. What are “known consequences”? Consequences, outside the court room, are endless for a defendant. Is there a duty to investigate those consequences? Or is a simple boiler plate “I don’t know if this will impact other areas of your life, but it might” be sufficient.

    When a defendant proceeds pro se, he proceeds as his own defense attorney. Knowing the “material information regarding the substance, process of negotiation and entry” and ESPECIALLY consequences of a conviction is the DEFENSE ATTORNEYS job. Prosecutors are simply not going to know every defendant’s immigration status, marital status, job status, driving record, parole/probation status, custody status, state subsidy status, military status, etc…all of which have consequences after a conviction. Putting that responsibility on the prosecutor conflicts with the statement every judge tells a defendant when they chose to represent themselves…”the prosecutor is not your attorney. They will not act on your behalf. They will not explain to you how things work or what you should do. They cannot give you advice. They’ve gone to law school and you haven’t, but you are still expected to know all the rules, all the consequences, all the laws, and you are held to the same standard of knowledge and skill as they are. You are responsible for your own defense and your own decisions in court. Do you still want to proceed as your own attorney?” It seems like lines are significantly blurred and we’re setting prosecutors up for ethical violations that aren’t really ethical violations at all.

    My final issue is with relying on police reports. Great scott…Once again I’m left confused. If a prosecutor doesn’t have “reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation”, then neither does that prosecutor have probable cause or proof beyond a reasonable doubt. I want to know what “reasonable confidence” is. Is it sufficient to say that the report is detailed and matches what is seen in the video? If no video, does it match the officer’s description of events when you called to talk to him for a few minutes before trial? Or is it sufficient to say that you know the officer, you’ve done cases with him before, and know him to be thorough and even handed?

  4. “Suppose an unrepresented person has been jailed for several days on a misdemeanor charge and the State is agreeable to a sentence of time served. The opinion suggests that the prosecutor must refrain from extending such an offer until counsel is appointed. Yet, absent intervention from the court, this may result in the person spending additional days in jail.” This reflects the problems caused by holding people – by definition poor people- on a secured bond for a misdemeanor. A better solution than an uncounseled time-served plea is to unsecure the bond and allow the person to make a properly counseled decision on any plea offer.

  5. FWIW, I like to share a lot of these articles on Facebook, but the thumbnails for SOG articles don’t provide the titles of the articles or descriptions. It’s not very enticing for someone to click through to read on their own. Someone might want to look into changing how they’re displayed in Facebook, Twitter, and the like.

  6. I’m a magistrate. i set bonds daily. i do not set bonds based on the def’s financial statement. “the rich” have advantages outside the legal system. why should i let a “poor” def out on an unsecured bond just because his “rich” co-defendant can post a bond? my secure bonds are because the def usually has failures to appear, is not local, has no contacts with the community, no job, and, usually, other pending charges. if you can’t post a bond, perhaps you shouldn’t put yourself in a position to be charged with a crime. Magistrates are fairly thoroughly vetted before appointment. we usually know a bogus charge when we see one, particularly citizen initiated.

    • 1. “’The rich’ have advantages outside the legal system.” You don’t say! But maybe we shouldn’t perpetuate and expand those advantages within the legal system. If everyone, regardless of their situation, is given a secured bond, that’s exactly what happens. Financial ability should be a factor for the judicial official to consider, among many.

      2. If a defendant, whether rich or poor, “has failures to appear, is not local, has no contacts with the community, no job, and, usually, other pending charges,” then a secured bond may be appropriate. Make written findings to that effect so that the defendant, the ADA, and the judge considering a bond modification can look at those factors.

      3. “perhaps you shouldn’t put yourself in a position to be charged with a crime,” huh? Maybe you weren’t “thoroughly vetted” on the concept of the presumption of innocence.

  7. Here, and elsewhere, I’ve seen lots of advocacy for unsecured bonds for misdemeanor offenses.

    But, what if the person has numerous failure to appears, and a lengthy history of misdemeanor offenses, even if they are “petty,” such as shoplifting, or something similar?

    By unsecuring a bond we’re saying we won’t hold you in jail, even though you’re violating the law, and we know you won’t come to court for this. That makes it hard for the victims to get justice. I think an unsecure bond in some situations may be appropriate, but it’s by no means the panacea for this issue.

    • So you’re suggesting that the magistrates should consider a number of issues before determining the conditions of release, including someone’s criminal history and history of failures to appear? Great idea! Count me in.

  8. While I’m sure abuses occur, in my time in district court, I have been impressed with how legally adept some of our courtroom regulars are, often to the point that they know more than the attorneys that are likely to be appointed to represent them in their misdemeanor cases. I suspect some of our defendants are more than willing to get a time served plea on their own and avoid the court-appointed attorney fee plus the application fee to get the exact same result.

    • And maybe if they weren’t in jail just because they’re poor, they wouldn’t have to make that choice and could exercise their right to put the State to its proof of guilt beyond a reasonable doubt, possibly avoiding a conviction on their record.

  9. Ms. Denning, what is your opinion of the ethics of calendaring misdemeanors in an administrative session where defendants are required to appear and discuss a possible plea of their case with prosecutors, however there is no judge and no provision is made to advise them of the right to counsel? Secondly, what is your opinion of the ethics of the prosecutors office having an open window inviting defendants charged with misdemeanors to come and discuss possible pleas with the prosecutors and their staff prior to them being advised of their right to counsel?

  10. I would like to hear your thoughts on the subject of “no court appointed attorney authroized” when, at arraignment the judge decides there wont be any jail time. When the charge is a Class 2 misdemeanor with a maximum of 4 months in jail, and a Class 3 has a maximum of 30 days in jail…where is the judge getting his “no jail time” and where is “no jail time=no court-appointed counsel?”
    Just curious.


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