Does a prosecutor violate the ethics rules by telling a defendant in open court that he will be tried by a jury, likely facing a longer sentence, if he appeals his conviction?

Plain-English summary

Just after sentencing, a represented defendant asked the court about his right of appeal. The Commonwealth's Attorney told the court that if the defendant appeals he will be tried by a jury and asked the clerk to note that on the warrant. In that jurisdiction a jury usually imposes a longer sentence than the judge for the offense, and the defendant then chose not to appeal. The committee was asked whether the prosecutor violated any Rule by making the statement in the defendant's presence.

The committee looks first to Rule 3.8, the rule directed specifically at prosecutors, and finds none of its provisions apply: they address probable cause, unrepresented defendants, communication with witnesses, disclosure of exculpatory evidence, and extrajudicial statements, none of which covers a courtroom remark about a jury trial on appeal. Because the specific rule does not reach the statement, the committee turns to the general rules on attorney communications and concludes that nothing in those provisions of broad application, nor the prosecutor-specific provisions, prohibits the Commonwealth's Attorney's remarks in the presence of the represented defendant.

Currency note

This opinion was issued in 2002. Virginia's Rule 3.8 and related provisions may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, the prosecutor's in-court statement that the defendant would face a jury trial on appeal violated neither Rule 3.8 nor the general rules governing attorney communications. The committee's conclusion is confined to the courtroom remark described and does not characterize the statement beyond the ethics rules it analyzed.

Common questions

Q: Can a prosecutor tell a defendant in court that appealing will mean a jury trial and likely a longer sentence?

A: Yes, under this opinion. The committee finds no provision of Rule 3.8 or the general communication rules prohibits the statement.

Q: Does Rule 3.8 cover this kind of statement?

A: No. The committee explains that Rule 3.8's provisions address probable cause, unrepresented defendants, witnesses, exculpatory evidence, and extrajudicial statements, none of which reaches a courtroom remark about a jury trial on appeal.

Background and rules framework

The opinion interprets Rule 3.8 (Model Rule 3.8; special responsibilities of a prosecutor) and, finding it inapplicable, the general rules restricting an attorney's professional communications. It does not identify any specific general rule as violated.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.8 / Virginia Rule 3.8 (special responsibilities of a prosecutor)

See also

• VA LEO 1767: Commonwealth's Attorney as Client of Defense Firm
• VA LEO 1864: Withholding Criminal Discovery From a Client
• VA LEO 1857: Plea Waiver of Ineffective-Assistance Claims

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1768.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
November 26, 2002
LEGAL ETHICS OPINION 1768

PROSECUTOR THREATENING TRIAL
BY JURY TO DISSUADE A
DEFENDANT FROM APPEALING A
CRIMMINAL CONVICTION TO THE
CIRCUIT COURT.

You have presented a hypothetical involving comments made by a prosecutor in open
court. The represented defendant just after sentencing had asked the court about his right
of appeal. The Commonwealth Attorney then informed the court that if the defendant
appeals, he will be tried by a jury and requests that the clerk of court note that on the
warrant. In this jurisdiction, it is commonly known that a jury will usually impose a
longer sentence than the judge for this offense. The defendant subsequently chose not to
exercise his right of appeal.
Under the facts you have presented, you have asked the committee to opine as to
whether the prosecutor has violated any provision of the Rules of Professional Conduct
by making this statement in the presence of the defendant.
The Rule that specifically addresses conduct of a prosecuting attorney is Rule 3.8. That
provision places special restrictions on the activities of a prosecutor; however, none of
those apply here. Those provisions deal with probable cause, unrepresented defendants,
communication with witnesses, disclosure of exculpatory evidence, and extrajudicial
statements. The statements made by this prosecutor in court regarding a jury trial are not
prohibited by any of the provisions in Rule 3.8.
As the specific rule regarding prosecutors does not preclude the statements made in
your hypothetical, the permissibility of those statements is governed by the Rules’
general provisions regarding restrictions on an attorney’s professional communications.
The committee opines that nothing in the provisions of broad application governing
attorney communications, nor the specific provisions directed at prosecutors prohibit the
remarks of this Commonwealth’s Attorney in the presence of this represented defendant.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.
Committee Opinion
November 26, 2002