Litigation & Advocacy · 10-16% of the exam
15.3.2Post-Conviction Duties (Rule 3.8(g)–(h))
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- Rule 3.8(g)–(h) — Post-conviction duties of the prosecutor
The obligation to pursue justice survives the verdict. Any prosecutor who encounters credible new evidence of innocence after conviction bears affirmative duties under Rules 3.8(g) and (h); personal involvement is irrelevant.
Why
A verdict ends the trial; it does not end the possibility that the trial got it wrong. Once a case is closed, the office that brought it is generally the only party holding both the information and the standing to reopen it — so the duty has to sit there or sit nowhere.
Plain English
A prosecutor who knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense must promptly disclose it to an appropriate court or authority — and, where the conviction came from the prosecutor's own jurisdiction, also to the defendant unless a court authorizes delay, and must undertake or cause further investigation. Those three duties are (g)(1), (g)(2)(i) and (g)(2)(ii) in that order, and a conviction obtained in another jurisdiction stops the duty at (g)(1).
Knowing by clear and convincing evidence that a defendant in that jurisdiction was wrongly convicted, the prosecutor must seek to remedy the conviction.
Rule
Rule 3.8(g)–(h) — Post-conviction duties of the prosecutor
(g) New credible evidence of innocence: If the prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor shall:
- Promptly disclose that evidence to an appropriate court or authority; AND
- If the conviction was obtained in the prosecutor's own jurisdiction:
- (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
- (ii) undertake — or make reasonable efforts to cause — further investigation to determine whether the defendant was wrongly convicted.
(h) Clear wrongful conviction: If the prosecutor knows by clear and convincing evidence that a defendant in the prosecutor's jurisdiction was wrongly convicted, the prosecutor shall seek to remedy the conviction, even without personal involvement in the original prosecution.
Good-faith judgment (Comment [9]): A prosecutor's independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of (g) and (h) is not a violation of the Rule, even if that judgment is subsequently determined to have been erroneous.
Jurisdiction is decisive:
Conviction in the prosecutor's own jurisdiction: sub-prongs (g)(1) and (g)(2) both apply, and within (g)(2) both (i) and (ii); (h) applies on its higher standard.
Conviction in another jurisdiction: only (g)(1) applies; (g)(2) and (h) do not.
Example 1
Ex. 1
Ana, a new assistant DA in County A, discovers that a jailhouse informant fabricated testimony in two cases, one in each county. DNA supports the County A defendant's innocence. Under (g)(1), she must disclose the fabrication to an appropriate court or authority in both cases. For County A only, she must also notify the defendant under (g)(2)(i) and investigate further under (g)(2)(ii), and seek to remedy the conviction under (h) if clear and convincing evidence of wrongful conviction emerges. Her non-involvement in the original trial is irrelevant. For County B, the duty stops at (g)(1). Divide Ana's two cases by county, then take the sub-prongs down each one.
Trap
Questions · 1
Q 01ch15-e10
Question 1 of 1 · Rule 3.8(g)
Prosecutor works in a county district attorney's office. A state audit published last month established that a laboratory analyst had falsified purity findings in drug cases for years. Prosecutor read the audit and picked out one conviction that had rested entirely on the analyst's report, obtained in a neighboring county by an office Prosecutor has never worked for and over which Prosecutor's office holds no authority. The falsified findings make it reasonably likely that the person convicted there did not commit the offense. Prosecutor had no role in that case and learned of it only from the audit. Which of the following must Prosecutor do about the neighboring county's conviction?
Keys 1 to 4 choose.