What are a New York prosecutor's ethical duties when evidence surfaces after conviction suggesting a defendant may be innocent?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion interprets New York Rule 3.8(c), which sets a minimum standard of conduct for a prosecutor who knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted. It concludes that the terms "new," "credible," "material," and "evidence" carry their ordinary, everyday meanings and were not meant to incorporate legal standards drawn from procedural rules, statutes, or constitutional decisions.
The opinion concludes Rule 3.8(c) does not apply unless the prosecutor or the prosecutor's office has actual knowledge of triggering evidence or consciously avoids acquiring such knowledge. It concludes the rule's application is fact-intensive and may be implicated in a variety of ways, including where the defendant pleaded guilty.
The opinion concludes that the Rule 1.1 competence duty establishes additional duties in the post-conviction context that can go beyond Rule 3.8(c). In some cases, that includes a duty to investigate new potentially exculpatory evidence regardless of whether Rule 3.8(c) is triggered, and a prosecutor who fails to learn of new exculpatory evidence because of a failure to exercise reasonable diligence may have acted incompetently under Rule 1.1.
In practice
Under this opinion, as the New York rules stood at the time, the prosecutor's post-conviction obligations operate on two tracks. The opinion holds that Rule 3.8(c) sets a knowledge-based minimum keyed to ordinary meanings of its terms and to actual knowledge or conscious avoidance, while Rule 1.1 competence can impose a further duty, in some circumstances, to investigate new potentially exculpatory evidence. The opinion holds the analysis is fact-intensive, and that the supervisory duties of Rules 5.1 and 5.3 reach the office's handling of such evidence.
Common questions
Q: When does Rule 3.8(c) require a prosecutor to act on post-conviction evidence?
A: When the prosecutor knows of qualifying evidence. The opinion concludes Rule 3.8(c) applies when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, and does not apply absent actual knowledge or conscious avoidance.
Q: How are "new, credible, and material" defined?
A: By their ordinary meaning. The opinion concludes those terms, and "evidence," carry their everyday meanings and were not meant to import standards from procedural rules, statutes, or constitutional decisions.
Q: Can a prosecutor have a duty to investigate even if Rule 3.8(c) is not triggered?
A: Yes, in some cases. The opinion concludes the Rule 1.1 competence duty can require a prosecutor to investigate new potentially exculpatory evidence regardless of whether Rule 3.8(c) applies, and that failing to learn of such evidence through a lack of reasonable diligence may be incompetent.
Q: Does it matter that the defendant pleaded guilty?
A: Not categorically. The opinion concludes Rule 3.8(c) may be implicated in a variety of ways, including in cases where the defendant pleaded guilty.
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 3.8(c) (a prosecutor's post-conviction duties, analogous to Model Rule 3.8(g) and (h)) and Rule 1.1 (competence), read together with the knowledge definition in Rule 1.0(k) and the supervisory duties of Rules 5.1 and 5.3. The Model Rule analogues are Model Rule 3.8 and Model Rule 1.1.
Citations and references
Rules of Professional Conduct:
- NY RPC 3.8(c) (prosecutor's post-conviction duties)
- NY RPC 1.1 (competence); NY RPC 1.0(k) (knowledge)
- NY RPC 5.1, 5.3 (supervisory duties)
- MR 3.8, MR 1.1 (Model Rule analogues)
See also
- NYC Bar Ethics Op. 2016-3: Prosecutors' duty to disclose favorable information
- ABA Formal Op. 467: Prosecutors' managerial and supervisory obligations
Source
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