Does a prosecutor's duty not to charge without probable cause line up with the statutory standard for filing a death-penalty notice?

Plain-English summary

After considerable discussion, the committee reached a tentative opinion comparing two standards. RCW 10.95.040 requires a prosecutor to file notice of a special sentencing proceeding to determine whether the death penalty should be imposed "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." The committee tentatively concluded that this requirement is the equivalent of RPC 3.8(a)'s requirement that a prosecutor "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."

The committee agreed that the language in both the statute and the rule, each using negative clauses, was confusing. It advised that if the inquirer disagreed with the committee's conclusion and wanted to submit a separate analysis of the statute and the rule, the committee would reconsider the matter.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 3.8 on the special responsibilities of a prosecutor was later renumbered and amended, and the death-penalty statute may have changed. The committee itself characterized its conclusion as tentative and open to reconsideration. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the committee give a firm answer on the death-penalty notice standard?

A: No. The committee reached only a tentative opinion and expressly invited the inquirer to submit a contrary analysis for reconsideration.

Q: What two standards did the committee compare?

A: The notice requirement in RCW 10.95.040 (file notice "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency") and RPC 3.8(a)'s requirement that a prosecutor refrain from prosecuting a charge the prosecutor knows is not supported by probable cause.

Q: What did the committee say about the wording of the two standards?

A: It agreed that the language in both, each using negative clauses, was confusing.

Background and rules framework

The opinion interprets Washington RPC 3.8(a) as it stood in 1986, part of the rule on the special responsibilities of a prosecutor (corresponding to Model Rule 3.8). The committee read RPC 3.8(a)'s probable-cause requirement against the statutory standard in RCW 10.95.040 for filing a death-penalty special-sentencing notice, treating them tentatively as equivalent while acknowledging the negative phrasing in both made the comparison difficult.

Citations and references

Rules of Professional Conduct:

• Washington RPC 3.8(a) (prosecutor shall refrain from prosecuting a charge not supported by probable cause), corresponding to Model Rule 3.8.

Statutes:

• RCW 10.95.040 (notice of special sentencing proceeding in capital cases), as quoted in the opinion.

See also

• WSBA Ethics Op. 1020: prosecutor advice to witnesses and defense interview access
• ABA Formal Op. 467: prosecutors' managerial and supervisory obligations
• ABA Formal Op. 469: prosecutors and debt-collection companies

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=81

Original opinion text

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

Advisory Opinion: 970
Year Issued: 1986
RPC(s): RPC 3.8(a); RCW 10.95.040
Subject: Probable cause; death penalty proceedings

After considerable discussion regarding your inquiry, the Committee reached the tentative opinion that the requirement in RCW 10.95.040 that a prosecuting attorney file notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency" is the equivalent of the requirement in RPC 3.8(a) that a prosecutor "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." The Committee did agree that the language in both the statute and the rule, each using negative clauses, was confusing. They wish me to advise you that if you disagree with the Committee's conclusion and want to submit your own analysis of the statute and the rule, the Committee would reconsider this matter.