[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR776.47]

[Page 525-526]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 776_PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE 
 
                 Subpart B_Rules of Professional Conduct
 
Sec. 776.47  Special responsibilities of a trial counsel.

    (a) Special responsibilities of a trial counsel. A trial counsel 
shall:
    (1) Recommend to the convening authority that any charge or 
specification not warranted by the evidence be withdrawn;
    (2) 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;
    (3) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (4) Make timely disclosure to the defense of all evidence or 
information known to the trial counsel that tends to negate the guilt of 
the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the trial counsel, except when the trial counsel is 
relieved of this responsibility by a protective order or regulation;
    (5) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the trial counsel from making an extrajudicial statement 
that the trial counsel would be prohibited from making under Sec. 
776.45 of this part; and
    (6) Except for statements that are necessary to inform the public of 
the nature and extent of the trial counsel's actions and that serve a 
legitimate law enforcement purpose, refrain from making extrajudicial 
comments that have a substantial likelihood of heightening public 
condemnation of the accused.
    (b) Role of the trial counsel. (1) The trial counsel represents the 
United States in the prosecution of special and general courts-martial. 
See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and 
502(d)(5), MCM, 1998. Accordingly, a trial counsel has the 
responsibility of administering justice and is not simply an advocate. 
This responsibility carries with it specific obligations to see that the 
accused is accorded procedural justice and that guilt is decided upon 
the basis of sufficient evidence. Paragraph (a)(1) of this section 
recognizes that the trial counsel does not have all the authority vested 
in modern civilian prosecutors. The authority to convene courts-martial, 
and to refer and withdraw specific charges, is vested in convening 
authorities. Trial counsel may have the duty, in certain circumstances, 
to bring to the court's attention any charge that lacks sufficient 
evidence to support a conviction. See United States v. Howe, 37 M.J. 
1062 (NMCMR 1993).

[[Page 526]]

Such action should be undertaken only after consultation with a 
supervisory attorney and the convening authority. See also Sec. 776.42 
of this part, governing ex parte proceedings. Applicable law may require 
other measures by the trial counsel. Knowing disregard of those 
obligations or a systematic abuse of prosecutorial discretion could 
constitute a violation of Sec. 776.69 of this part.
    (2) The ``ABA Standards for Criminal Justice: The Prosecution 
Function,'' (3rd ed. 1993), has been used by appellate courts in 
analyzing issues concerning trial counsel conduct. To the extent 
consistent with this part, the ABA standards may be used to guide trial 
counsel in the prosecution of criminal cases. See United States v. Howe, 
37 M.J. 1062 (NMCR 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); 
United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 
44 M.J. 1 (CMA 1996).