2018-IPG-37 (LIMITS ON PROSECUTORIAL CONTACTS WITH REPRESENTED & UNREPRESENTED PERSONS)

2018-IPG-37 (LIMITS ON PROSECUTORIAL CONTACTS WITH REPRESENTED & UNREPRESENTED PERSONS)

In this edition of the Inquisitive Prosecutors Guide, we discuss the barriers the Sixth and Fifth Amendment impose on prosecutorial contact with represented persons as well as the new rules of professional conduct governing contact by attorneys with represented and unrepresented persons (California Rules of Professional Conduct [“CRPC”] Rules 4.2, 4.3, and subdivisions (b) and (c) of Rule 3.8) going into effect in November of this year.   Among the questions discussed:  When can prosecutors or law enforcement contact persons whose Sixth Amendment right to counsel has attached?  When can prosecutors or law enforcement re-contact persons whose Fifth Amendment right to counsel has been invoked during custodial interrogation? Does new CPRC rule 4.2 change the currently existing rule (CPRC 2-100) governing contact with represented persons in any significant way?  And when can prosecutors communicate with charged but unrepresented persons and/or negotiate plea bargains with such persons?