•  
  •  
 

Abstract

Prosecutors, defense attorneys, jurists, and citizens alike cringe at the thought of their fellow citizens serving criminal sentences for crimes that they did not commit. Unfortunately, evidence sometimes emerges after conviction that would exonerate the defendant. As a result, in February 2008, the American Bar Association adopted two amendments, (g) and (h), to the existing Model Rule 3.8, which governs the conduct of prosecutors. The two amendments place an affirmative duty on prosecutors to investigate "new, credible and material evidence." If the evidence creates a "reasonable likelihood" that the convicted defendant did not commit the crime, the prosecutor must "seek to remedy the conviction." Despite the American Bar Association's recommendation, only Wisconsin has adopted the amendments to Rule 3.8. This Comment argues that states should adopt the amendments as an extension of prosecutorial duties already stipulated in the Rules of Professional Conduct. Currently, due to the lack of an ethical requirement under most states' rules of professional conduct, prosecutors act out of their own benevolence rather than an ethical obligation when reopening questionably decided cases. Implementing Model Rules 3.8(g) and (h) would offer recourse for defendants who are currently wrongfully convicted and would require prosecutors to act in seeking justice for such defendants. Hopefully, this Comment will contribute to the ongoing debate over the professional and ethical role of prosecutors in exonerating the wrongfully convicted. While Model Rules 3.8 (g) and (h) will not resolve all wrongful convictions, the amendments will require prosecutors to provide a second chance for justice

Download

Share

COinS