April 22, 1982
Members of the Prosecuting Attorney's Office are not disqualified from representing the people of the State of Michigan when another member of the Prosecuting Attorney's Office will be testifying.
References: DR 5-102(A); People v. Lemble, 103 Mich App 220 (1981).
A prosecuting Attorney and an Assistant Prosecuting Attorney was the recipient of a voluntary confession from an individual who was a defendant accused of committing a crime, and that such APA would be a witness to the confession in the trial of the defendant.
The lawyer inquires whether or not all of the APAs are disqualified from trying this case because the testimony of the APA will undoubtedly be crucial in the case. DR 5-102(A).
This question has been the subject of considerable discussion and debate. Originally, an opinion was proposed stating, in substance, that the factual situation presented would require the appointment of a special prosecutor. On reconsideration, the Committee now approves of representation by a member of an elected Prosecuting Attorney's office in the case where a member of the same office appears as a principal witness.
The members of the staff are not disqualified from trying this criminal case against this particular defendant, and the matter may be tried by a member of your office except the assistant who would be a witness in the case.
While DR 5-102(A) requires withdrawal of a lawyer from pending litigation when it becomes apparent that the lawyer of a member of the firm will be called as a witness in the case, it is the opinion of the Committee DR 5-102(A) does not apply to the Prosecuting Attorney. The Prosecuting Attorney is in a unique position distinguishable from a lawyer in a law firm or a member of any partnership. The Prosecuting Attorney has no clients, but represents the people of the State of Michigan. The Prosecuting Attorney does not share monetarily in the outcome of the court proceedings and can accept no money for prosecutorial services other than the salary set by the Board of Commissioners. The Prosecutor appoints Assistant Prosecuting Attorneys to fill the number of positions set by the Board. In addition, the Assistant Prosecuting Attorneys appointed by the elected Prosecutor serve at the Prosecutor will during the term for which he or she is elected. Continuation by such Assistant Prosecuting Attorneys upon the expiration of the term can only be done by reappointment by the elected Prosecuting Attorney.
As an elected official, the Prosecuting Attorney and the appointees take a court oath of office, in addition to the oath required to become a member of the State Bar. The courts of this State have held that the Prosecuting Attorney is the chief law enforcement officer of the county, and as such, establishes standards and procedures in this area. A special Prosecuting Attorney's policies or procedures and, therefor, such special Prosecuting Attorney would not be subject to the control of the electorate.
The appearance before the jury of a person other than a duly appointed member of the Prosecuting Attorney's staff or the Prosecuting Attorney, might create in the minds of the jurors some undue significance to the case to the detriment of the defendant and thus could possibly deny the defendant a fair trial.
It should be pointed out that a case with a fact situation much like that presented was decided by the Court of Appeals. The Court of Appeals in that case decided that the fact that an Assistant Prosecuting Attorney was going to testify in the case would not require either the Prosecutor or other Assistant Prosecutors in the office to disqualify themselves. (See People v. Lemble, 103 Mich App 220 (1981), appeal to the Supreme Court denied.