Rule 3.8.Special Responsibilities of a Prosecutor 
 The prosecutor in a criminal case shall: 
  
 (a)refrain from prosecuting a charge that the prosecutor knows 
 is not supported by probable cause; 
  
 (b)make reasonable efforts to assure that the accused has been 
 advised of the right to, and the procedure for obtaining, counsel and 
 has been given reasonable opportunity to obtain counsel; 
  
 (c)not seek to obtain from an unrepresented accused a waiver of 
 important pretrial rights, such as the right to a preliminary hearing, 
 except that this does not apply to an accused appearing pro se with the 
 approval of the tribunal.  Nor does it forbid the lawful questioning of 
 a suspect  who has waived the rights to counsel and silence. 
  
 (d)make timely disclosure to the defense of all evidence of 
 information known to the prosecutor that tends to negate the guilt of 
 the accused or mitigates the offense, and, in connection with 
 sentencing, disclose to the defense and to the tribunal all unprivileged 
 mitigating information known to the prosecutor, except when the 
 prosecutor is relieved of this responsibility by a protective order of 
 the tribunal; and 
  
 (e)exercise reasonable care to prevent investigators, law 
 enforcement personnel, employees or other persons assisting or 
 associated with the prosecutor in a criminal case from making an 
 extrajudicial statement that the prosecutor would be prohibited from 
 making under Rule 3.6. 
  
 (f)not subpoena a lawyer in a grand jury or other criminal 
 proceeding to present evidence about a past or present client unless: 
  
 (1)the prosecutor reasonably believes: 
  
 (i)the information sought is not protected from disclosure by 
 any applicable privilege; 
  
 (ii)the evidence sought is essential to the successful 
 completion of an ongoing investigation or prosecution; and 
  
 (iii)there is no other feasible alternative to obtain the 
 information. 
  
 (2)(Deleted.) 
  
 

                                                                
ANNOTATIONSSource: 
 (f) and comment amended and adopted and (2) deleted, 
 effective February 19, 1997. 
  
  
  
 COMMENT 
 [1]A prosecutor has the responsibility of a minister of 
 justice and not simply that of an advocate.  This responsibility carries with 
 it specific obligations to see that the defendant is accorded procedural 
 justice and that guilt is decided upon the basis of sufficient evidence. 
 Precisely how far the prosecutor is required to go in this direction is 
 a matter of debate and varies in different jurisdictions.  Many 
 jurisdictions have adopted the ABA Standards of Criminal Justice 
 Relating to Prosecution Function, which in turn are the product of 
 prolonged and careful deliberation by lawyers experienced in both 
 criminal prosecution and defense. 
 Applicable law may require other measures by the prosecutor and knowing 
 disregard of those obligations or a systematic abuse of prosecutorial 
 discretion could constitute a violation of Rule 8.4. 
  
 [2]Paragraph (c) does not apply to an accused appearing pro 
 se with the approval of the tribunal.  Nor does it forbid the lawful 
 questioning of a suspect who has knowingly waived the rights to counsel 
 and silence. 
  
 [3]The exception in paragraph (d) recognizes that a 
 prosecutor may seek an appropriate protective order from the tribunal if 
 disclosure of information to the defense could result in substantial harm to 
 an 
 individual or to the public interest. 
  
 COMMITTEE COMMENT 
 Because this provision is based to a considerable extent on the 
 ABA Standards of Criminal Justice Relating to the Prosecution Function 
 which many jurisdictions have adopted and because it deals with a 
 specialized area of practice, the Committee felt it should leave this 
 provision as it was set out in the Model Rules. 
  
  
  
 ANNOTATION 
  
 Annotator's note. 
 Rule 3.8 is similar to 
 DR 7-103, DR 7-104, and DR 7-107 as they 
 existed prior to the 1992 repeal and reenactment of the Code of 
 Professional Responsibility. 
 Relevant cases construing DR 7-103 have been included in the annotations to 
 this rule.  Cases construing DR 7-104 have been included under Rule 3.4 and 
 cases construing DR 7-107 have been included under Rule 3.3. 
  
 Paragraph (f)(1) is inconsistent with federal law and thus is invalid as applied to 
 federal prosecutors practicing before the grand jury.  As applied to proceedings other 
 than those before the grand jury, paragraph (f)(1) is not inconsistent with federal law and 
 does not violate the supremacy clause.  Thus, paragraph (f)(1) is valid and enforceable except 
 as it pertains to federal prosecutors practicing before the grand jury.  U.S. v. Colorado 
 Supreme Court, 988 F. Supp. 1368 (D. Colo. 1998), 
 aff'd, 189 F.3d 1281 (10th Cir. 1999). 
  
 Cases Decided Under Former DR 7-103. 
 While the prosecutor may strike hard blows, he is not at 
 liberty to strike foul ones, for it 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.  People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972). 
  
 Prosecutor's zealous prosecution of a case is not improper.  People 
 v. Marin, 686 P.2d 1351 (Colo. App. 1983). 
  
 A prosecutor's duty is to seek justice, not merely to 
 convict.  People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972); 
 People v. Drake, 841 P.2d 364 (Colo. App. 1992). 
  
 If the prosecution witness advises prosecutor that he or she knows or 
 recognizes one of the jurors, the prosecutor has an affirmative duty 
 immediately to notify the court and opposing counsel of the witness' 
 statement. People v. Drake, 841 P.2d 364 (Colo. App. 1992). 
  
 There was no prosecutorial misconduct when the district attorney and 
 police 
 had no knowledge of any evidence that would negate the defendant's guilt or 
 reduce his punishment.  People v. Wood, 844 P.2d 1299 (Colo. App. 1992). 
  
 Prosecutor should see that justice is done by seeking the truth.  The 
 duty of a prosecutor is not merely 
 to convict, but to see that justice is done by seeking the truth of 
 the matter.  People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973). 
  
 No evidence proving defendant's innocence shall be withheld from him. 
 It is the duty of both the prosecution and the courts to see that no known 
 evidence in the possession of the state which might tend to prove a 
 defendant's innocence is withheld from the defense before or during 
 trial.  People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972). 
  
 A prosecutor must be careful in his conduct to ensure 
 that the jury tries a case solely on the basis of the facts 
 presented to it.  People v. Elliston, 181 Colo. 118, 508 P.2d 379 
 (1973). 
  
 The district attorney has the duty to prevent conviction on misleading or perjured 
 evidence.  The duty of the district attorney extends not only 
 to marshalling and presenting evidence to obtain a conviction, 
 but also to protecting the court and the accused from having 
 a conviction result from misleading evidence or perjured testimony. 
 DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972).