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131 N.J.L.J. 170
May 18, 1992
1 N.J.L. 740
May 18, 1992
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Municipal Prosecutor Conditioning
Plea Bargain Upon Defendant's
Execution of Civil Release Form
The inquirer asks whether it is ethical for a municipal
prosecutor to require, as a condition precedent to a plea bargain,
that a defendant in a criminal, quasi-criminal or motor vehicle
matter sign a form in which the defendant agrees that there existed
probable cause to arrest, that no excessive force was used in
effectuating the arrest, and that any right to sue the arresting
officer for a violation of civil rights is waived. Specifically, in
order to have a plea bargain accepted, any defendant must answer
the following questions - which are on the plea bargaining form -
Do you agree that the police officer(s) who
arrested you and detained you had probable
cause to arrest you and to charge you with all
of the offenses listed in response to question
Do you acknowledge that the police officer(s)
who arrested you exercised only the force that
was reasonable and necessary to arrest you?
Do you realize that by signing this document
you are giving up the right to sue the police
officer who arrested you, any police officer
involved in the arrest and the City of
based upon any of the circumstances
surrounding your arrest, the filing of the
charges and your detention?
In the factual context recited by the inquirer, the prosecutor
demanded affirmative responses to these three questions in a
situation in which probable cause did not exist. When there is no
probable cause, the introduction of RPC 3.8(a) unequivocally
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the
prosecutor knows is not supported by probable
Requiring a defendant to acknowledge the existence of probable
cause in no way vitiates the obligation of the prosecutor not to
prosecute when probable cause does not exist. That duty is absolute
and unconditional. A defendant's uninformed - or informed - view on
probable cause cannot relieve the prosecutor of the duty to assure
that probable cause is present.
Even if there exists probable cause in the subjective opinion
of the prosecutor, it is improper for the prosecutor to insist upon
a defendant's acknowledgment of the existence of probable cause.
A defendant's acknowledgment of the existence of probable cause is
irrelevant to both the purpose and the propriety of a plea bargain.
The true purpose for such a question can only be to enhance law
enforcement's position unfairlySee footnote 1
or to relieve the prosecutor
improperly of the obligation to ascertain the existence of probable
cause. Requiring an affirmative answer to this first question is
The issues of whether it is proper for a prosecutor to demand
an acknowledgment that excessive force was not used and to require
waiver or release of civil rights claims are separate and distinct
from the issue of waiving probable cause. We start with the well-
established obligation of the prosecutor:
The primary duty of a prosecutor is not to obtain
convictions but to see that justice is done. State v.
Farrell, 61 N.J. 99, 104 (1972). Thus, "[I]t is as much
his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every
legitimate means to bring about a just one." Id. at 105
(quoting Beyer v. United States, 295 U.S. 78, 88, 55 S.
Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).
See State v. Marshall, 123 N.J. 1, 152-153 (1991).
RPC 3.8 expands upon a prosecutor's "Special Responsibilities"
and details certain active steps a prosecutor must take to ensure
fair treatment of defendants. In the spirit of RPC 3.8, we note
that neither fairness nor logic dictates that a defendant should be
bound by his untutored perception of whether "reasonable and
necessary force" was used, as this form requires. Just as in the
case of requiring acknowledgment of probable cause, asking a
defendant to acknowledge affirmatively the existence of the legally
ephemeral concept of "reasonable and necessary force" is the
antithesis of insuring that justice is done and it is a default of
the State's affirmative obligation. A prosecutor thus may not
demand an affirmative answer to this question as a precondition to
a plea bargain.
The required waiver of civil rights requires analysis under an
additional rule. RPC 3.4(g) mandates that a lawyer shall not
"present, participate in presenting, or threaten to present
criminal charges to obtain an improper advantage in a civil
matter." In the situation presented, the defendant was in court
under threat of quasi-criminal charges for which no probable cause
existed. Because probable cause was absent, proceeding with trial
would have been a violation of the prosecutor's obligation under
RPC 3.8(a). Despite this lack of probable cause, and attendant
possible violation of RPC 3.8(a), trial was to be held unless
certain substantive rights were waived. The element of quid pro quo
forbidden by RPC 3.4(g) is present: unless the defendant waived
certain of his constitutional and civil rights (a clear civil
advantage to both the police officers and the municipality
involved), he would be prosecuted in violation of RPC 3.8(a).
We hasten to acknowledge the tension created by these three
conditions precedent as they relate to the question of
voluntariness of the plea. It may be that requiring affirmative
answers to these questions is also inherently coercive, in addition
to being unethical. We are not reaching that issue, because we
perceive that the practice described here is unethical, as opposed
to illegal. In reaching our conclusion, we acknowledge that a
similar practice has been held to be not invalid or illegal per se.
In Newton v. Rumery, 480 U.S. 386, 107 S. Ct. 1187, 94 L.Ed. 2d 405
(1987), decided by a sharply divided 4-1-4 Court, the United States
Supreme Court held that on the specific facts of that case, an
agreement to dismiss premised upon release of rights under 42
U.S.C. § 1983 could be enforced. Throughout the plurality opinion,
the Court emphasized that the peculiar facts of the case - which
included the defendant's early representation by an attorney, his
sophistication and the victim's desire not to testify in an
unpleasant sexual assault case - allowed him to validly waive what
§ 1983 rights he may have had.
Because Newton is explicitly fact-sensitive, it cannot be read
as endorsing wholesale waivers without regard to actual facts, as
the State seeks to do here. While the three questions here may be
able to pass muster under Newton in certain factual settings, we
believe that a bright-line prophylactic rule forbidding conditions
precedent such as those required here is more in keeping with the
ethical obligations of the prosecutor.See footnote 2
As an additional benefit,
it will have the ancillary effect of sparing the criminal justice
system from the unseemly spectacle of Newton-based attacks on the
integrity of prosecutors and, incidentally, from attacks on the
validity of the waivers themselves.
* * *
Footnote: 1 1
In effect, the threat of continuation of prosecution is being used
to extract an admission that will provide protection against a
civil suit, in violation of RPC 3.4(g).
Footnote: 2 2
Nor do we believe that our opinion in this inquiry conflicts with
Opinion 565, 116 N.J.L.J. 225 (August 15, 1985).
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