Postconviction Prosecutorial Duties

Abstract

A prosecutor’s ethical duty to disclose exculpatory information prior to conviction has long been recognized. The wrongful convictions revealed through the work of the original Innocence Project and its offspring around the country have focused attention in recent years on the ethical obligations of prosecutors who learn of exculpatory information after a conviction. Must a prosecutor disclose such information? When a prosecutor learns of exculpatory information after a conviction, must the prosecutor investigate further to determine whether the defendant was wrongfully convicted? Must the prosecutor seek to remedy a conviction if the exculpatory evidence is sufficiently strong? In this legal ethics column, we review how the American Bar Association (ABA) and various state ethics authorities have answered these three questions.

Keywords: ethics, legal ethics, professional responsibility, Model Rule 3.8, postconviction, prosecutor, prosecutor duty

JEL Classification: K14, K19, K39, K41, K42