20.08. Obligations when prosecutor learns of innocence of convicted defendant [Rule 3.8(g) & (h)]

Subsections (g) and (h) to Rule 3.8 are the most recent amendments to the Rule – adopted in 2008.  The subsections address a prosecutor’s ethical duties when they learn of evidence after a conviction that casts doubt on the conviction.  The Innocence Project led the push to add these subsections (first in New York and then adopted by the ABA).[1]  Subsection (g) provides that when a prosecutor “knows” of “new, credible and material” evidence that creates a “reasonable likelihood” that someone who was convicted did not commit the crime, the prosecutor must:  (i) promptly disclose the evidence to the appropriate authority; and (ii) if the conviction was obtained in the prosecutor’s jurisdiction:  disclose the evidence to the defendant and undertake an additional investigation to evaluate the defendant’s guilt.

Subsection (h) states that when a prosecutor “knows” by “clear and convincing” evicence that someone convicted in the prosecutor’s jurisdiction was wrongfully convicted, the prosecutor “shall seek to remedy the conviction.”

[1] See Michele K. Mulhausen, “A Second Chance at Justice: Why States Should Adopt ABA Model Rules of Professional Conduct 3.8(g) and (h),” 81 U. Colo. L. Rev. 309 (2010).