CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, March 23, 2023

Green on Prosecutors' Duties to Rectify Wrongful Convictions

Bruce A. Green (Fordham University School of Law) has posted Should Prosecutors Be Expected to Rectify Wrongful Convictions? (Forthcoming, Texas A&M L. Rev. (2023)) on SSRN. Here is the abstract:
In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although prosecutors in those states have not reported problems with the rules, state and federal prosecutors often oppose their adoption in the remaining states, including in Texas where the model provisions have been under consideration for over a year.

Prosecutors’ objections generally sound one of three themes. First, some prosecutors contest that they should be responsible for investigating and rectifying wrongful convictions. Second, some assert that because they can be counted on to rectify wrongful convictions, the rules serve no useful purpose but instead simply impugn prosecutors’ ethics. Third, some insist that the rules will unduly burden them—the rules demand too much of prosecutorial time and resources; they are too imprecise; or they will provoke unfounded disciplinary complaints to which prosecutors must respond. After providing background into the rules’ development, this Article examines prosecutors’ objections to adopting Model Rules 3.8(g) and (h) and explains why those objections are unpersuasive.

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