RPC 3.8 - Special Responsibilities of a Prosecutor

• Proposed Changes to RPC 3.8 - Special Responsibilities of a Prosecutor (in Word Format)
• Comments Received for RPC 3.8 - Special Responsibilities of a Prosecutor

Purpose: At its September 24, 2010 meeting the Board of Governors of the Washington State Bar Association unanimously adopted the recommendation of the Rules of Professional Conduct Committee described as follows:

The purpose of suggested amendments to RPC 3.8 is to define a prosecuting attorney’s obligation when learning of material evidence establishing that a convicted defendant is in fact innocent. Suggested RPC 3.8(g), (h), and (i), including new comments [7] – [9] and changes to comment [1], is attached as Exhibit A.

The ABA modified Model Rule 3.8 in February of 2008, in response to the increasing number of science-based criminal exonerations and the gap in the ethics rules regarding the responsibilities of a prosecutor who learns of an erroneous conviction after the conviction is final. The revisions require prosecutors to take action when informed of a wrongful conviction. The underlying premise of the revisions is recognition that prosecutors have professional duties upon learning that a wrongful conviction may have occurred. Rule 3.8 has always recognized the special role of a prosecutor and the fundamental ethical duty to avoid convictions of innocent people. The inclusion of paragraphs (g) and (h) in Rule 3.8 confirms the critical importance of this obligation.

While prosecutors would agree that correction of an erroneous conviction is the right thing to do, pressures of time and resources and other disincentives to correcting mistakes mean that credible post-conviction exculpatory evidence may be overlooked. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. Rev. 125 (2004). Bringing the corrective action from a level of best practice to minimum ethical duty serves to counteract the effect of institutional inertia. It is also consistent with the statutory duty of prosecutors in Washington to “seek to reform and improve the administration of justice and stimulate efforts to remedy inadequacies or injustice in substantive or procedural law.” RCW 36.27.020(13).

In defining the professional duties of prosecutors when learning that a person has been wrongfully convicted, the suggested amendments to RPC 3.8 represent “a carefully calibrated regime that differentiates between different levels of certitude, and also regards as significant the jurisdiction in which the wrongful conviction occurred.” 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering §34.10, at 34-17 (3d ed. 2009 Supp.). As discussed below, the standard for mandatory action by a prosecutor is high, and the suggested amendment contains a safe harbor based on a prosecutor’s good faith exercise of professional judgment in the rule itself rather than in a comment. The rule does not represent a judgment that wrongful convictions result from prosecutorial misconduct; rather, it “assumes that prosecutors are best placed to see that justice is done, as stated long ago in Berger v. United States, 295 U.S. 78 (1935) – whether that means convicting the guilty in most of their work, or freeing the innocent in this special circumstance.” Id.

Suggested RPC 3.8(g) requires a prosecutor to make prompt disclosure to an appropriate court or authority when he or she “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant is innocent of the offense of which the defendant was convicted.” In addition, where the conviction was obtained in the prosecutor’s jurisdiction, the prosecutor must also, in the absence of a court’s authorization to delay, promptly disclose the evidence to the defendant, and make reasonable efforts to inquire into the matter (or alternatively make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter), in order to determine whether the defendant is innocent of the offense of which he or she was convicted. As noted in proposed comment [7], what constitutes “reasonable efforts” will depend on the circumstances.

Suggested RPC 3.8(h) deals with the situation the prosecutor learns of clear and convincing evidence establishing that a defendant convicted in the prosecutor’s jurisdiction was innocent of the offense. In such circumstances, the rule requires the prosecutor to “seek to remedy the conviction.” Comment [8] clarifies that what steps are required to remedy the conviction if RPC 3.8(h) is implicated will also depend on the circumstances, and may include disclosure of the evidence to the defendant, requesting appointment of counsel for an unrepresented indigent defendant, and if appropriate, notifying the court that the prosecutor has knowledge of the defendant’s innocence.

A concern has been raised that suggested subsection (h) to RPC 3.8(h) is contrary to the adversary system of justice and fundamentally changes substantive law regarding the prosecutor’s role. The ethics rules, however, recognize that there are limits to zealous advocacy in representing clients in our adversary system. See RPC 1.3, cmt. [1] (although a lawyer must act “with commitment and dedication to the interests of the client and with diligence in advocacy upon the client's behalf,” lawyers are “not bound . . . to press for every advantage that might be realized for a client”). These limits no doubt apply to prosecutors, who are governmental actors who have a professional obligation to do justice and serve the public generally. Imposing a duty to take action to remedy a wrongful conviction in narrowly defined circumstances in which the prosecutor knows of clear and convincing evidence establishing that a defendant convicted in the prosecutor’s jurisdiction was wrongfully convicted is entirely consistent with the prosecutor’s role and should be included in the rule.

Suggested RPC 3.8(i) provides a safe harbor, clarifying that a prosecutor does not breach the rules of professional conduct, and will not be disciplined, based on the prosecutor’s “independent judgment, made in good faith, that the evidence is not of such nature as to trigger the obligations of paragraphs (g) and (h) of [Rule 3.8].”

Comparison with Model Rule. The proposed version of suggested RPC 3.8 (g), (h), and (i) contains some significant changes from the Model Rule version. A redlined draft showing the changes from the Model Rule is attached as Exhibit B. These revisions resulted in large part from input received from several interest groups. The major differences between suggested rule amendments and the Model Rule are as follows:

First, throughout the rule, the suggested Washington version uses the term “innocent of the offense” rather than “did not commit an offense” in describing the status of the convicted defendant triggering the prosecutor duties. This change was made based on the Washington Association of Prosecuting Attorneys’ (WAPA) concern that the “did not commit” language may be interpreted far more broadly than “innocent,” and that the “did not commit” language might be used to raise issues about the statutory definition of a crime (including the extent of accomplice or conspirator liability and degrees of culpability), application of evidentiary rules, or sentencing considerations of aggravating/mitigating factors. This change clarifies, therefore, that the focus of this rule is on the convicted defendant’s actual innocence, not on extenuating and peripheral circumstances or statutory/evidentiary legal distinctions.

Second, in subsection (g), the language has been changed to clarify that “reasonable efforts” to inquire into the matter or to cause the appropriate law enforcement agency to undertake an investigation will be sufficient when the conviction was obtained in the prosecutor’s jurisdiction. By its terms, the proposed subsection imposes a duty on a prosecutor to undertake further inquiry or cause a law enforcement agency to undertake an investigation only if and to the extent such efforts are reasonable under the circumstances.

Finally, although the “good faith judgment” safe harbor is only a comment to Rule 3.8 (#9) in the revised Model Rules, the suggested amendment includes the provision in the rule itself (as subparagraph (i)) so that there is no question regarding the binding effect of the provision in charging disciplinary violations and in imposing disciplinary sanctions in these circumstances.