130
Opinion of the Court
competent witness might have performed. Even if she may have been following a practice that was routinely employed by her colleagues and predecessors in King County, Washington, that practice is surely not prevalent in other parts of the country and is not even mandated by law in King County. Neither petitioner nor amici argue that prosecutors routinely follow the King County practice.16 Indeed, tradition, as well as the ethics of our profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding.17
Nevertheless, petitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how
16 Amicus Curiae United States points out that federal prosecutors typically do not personally attest to the facts in an affidavit filed in support of an application for an arrest warrant, but "[i]nstead a law enforcement agent ordinarily attests to those facts." Brief 7. Amici Curiae Thirty-Nine Counties of the State of Washington state that local court rules in only two counties in Washington require the prosecutor to file an additional document beyond an information. Brief 2.
17 See, e. g., Washington Rule of Professional Conduct 3.7 (1995) ("A lawyer shall not act as advocate at a trial in which the lawyer . . . is likely to be a necessary witness," unless four narrow exceptions apply); ABA Model Rules of Professional Conduct 3.7 (1992).
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