Rule Text (verbatim from The Florida Bar)
The prosecutor in a criminal case must:
(a) refrain from prosecuting a charge that the prosecutor
knows is not supported by probable cause;
(b) not seek to obtain from an unrepresented accused a
waiver of important pre-trial rights such as a right to a preliminary
hearing; and
(c) make timely disclosure to the defense of all evidence or
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.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
Florida prosecutors have heightened ethical duties beyond the general advocacy rules. They must refrain from prosecuting charges they know lack probable cause, must disclose exculpatory evidence to the defense, and must take care that defendants are advised of their right to counsel. The rule recognizes that prosecutors have unique power — and unique responsibilities — in the criminal system. A prosecutor who hides exculpatory evidence violates this rule and may have committed Brady error too.
Florida Bar Ethics Opinions interpreting this rule
- Opinion 86-3 (1986)
<p>A criminal defense lawyer has no duty to volunteer your prior conviction record to the sentencing court, even if the court is operating on incomplete information — as long as neither the lawyer nor the client lied about your record. The line is between staying silent (allowed) and making false statements (not allowed). Your lawyer's job is to advocate, not to help the prosecution build its file.</p>
Read on floridabar.org →
Comment (verbatim from The Florida Bar)
A prosecutor has the responsibility of a minister of justice and
not simply that of an advocate. This responsibility carries with it
specific obligations such as making a reasonable effort to assure
that the accused has been advised of the right to and the procedure
for obtaining counsel and has been given a reasonable opportunity
to obtain counsel so 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. See also rule 4-3.3(d)
governing ex parte proceedings, among which grand jury
proceedings are included. Applicable law may require other
measures by the prosecutor and knowing disregard of these
obligations or systematic abuse of prosecutorial discretion could
constitute a violation of rule 4-8.4.
Subdivision (b) 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.
The exception in subdivision (c) 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.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended March 16, 2023, effective May 15, 2023 (SC22-1292).