Defendants Guilty of Being Innocent; Prosecutors Guilty of Being Human
BY KEITH SWISHER
We do not know how many innocent people in this
country have been convicted. But we do know that more than 1,000
people have been officially exonerated since 1989.1 We do not know how
all prosecutors in Arizona handle the news that they have (often innocently) convicted the wrong person. But we do know that some handle it
one way, others handle it another way, and no Arizona ethical rule provides
guidance either way. Finally, we do not know why the County Attorney’s
article (see facing page) resists any change to the rules that would, finally,
provide guidance to prosecutors facing these travesties of justice. (Indeed,
the new rules arguably might even strengthen prosecutors’ immunity
from civil liability in this context.
2) But we do know that the arguments
against amending the ethical rules lack merit and that the proposed rule
is better than Arizona’s status quo—which is no rule whatsoever.
We therefore have petitioned the Arizona Supreme Court to amend
Ethical Rule (ER) 3. 8 of the Arizona Rules of Professional Conduct,
which governs the ethical responsibilities of prosecutors.
3 For nearly 30
years, ER 3. 8 had remained virtually identical to the corresponding
Model Rule 3. 8. In 2008, the ABA adopted a significant amendment to
Model Rule 3. 8 to address the now-well-documented problem of wrongful convictions and to recognize the influential role of the prosecutor in
achieving the release of innocent people. The amendment would require
that the prosecutor disclose new, credible and material evidence to the
convicted defendant and court, and when that evidence clearly and convincingly shows that the defendant is innocent, the prosecutor must seek to set
aside the conviction (see the rule and comments at accompanying link).
Although case law recognizes a general ethical duty to disclose exculpatory evidence acquired after a conviction, that duty is not clearly
defined in either case law or ethical rules. The U.S. Supreme Court has
noted that prosecutors are “bound by the ethics of [their] office to
inform the appropriate authority of after-acquired or other information
that casts doubt upon the correctness of the conviction.”
4 Similarly, our
Arizona Supreme Court has agreed in passing that prosecutors have an
“ethical and constitutional obligation to disclose clearly exculpatory
material that comes to [their] attention after the sentencing has
5 Furthermore, as the ABA noted when promulgating the
ethical amendment, “[W]hen a prosecutor concludes upon investigation
of such evidence that an innocent person was convicted, it is well recognized that the prosecutor has an obligation to endeavor to rectify the
6 Thus, prosecutors seem to have post-conviction obligations
( 1) to disclose “clearly” exculpatory evidence and ( 2) if that evidence
—continued on p. 50
KEITH SWISHER is Associate Dean of Faculty Development and Associate
Professor of Law at Phoenix School of Law.
Prosecution ETHICS A Post-Conviction Duty Pro-Con
What should a prosecutor do if he or she discovers someone may have been wrongly convicted? What should any lawyer do?