Post-Conviction Duties

Most of Rule 3.8 governs a prosecution that is still pending. Paragraph (d) is typical: it sends information that negates guilt or mitigates the offense to the defense, and it sends mitigating information to the tribunal at sentencing.¹ That scheme assumes a defense lawyer, a court, and a decision still to be made. Evidence that a verdict was wrong can surface after all of those are gone, and until paragraphs (g) and (h) were added in 2008, it was unclear whether the rule reached such evidence at all. The new paragraphs answer with three duties that grow with the strength of the evidence and with the prosecutor's connection to the conviction:

A prosecutor who knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense must promptly disclose it to an appropriate court or authority, wherever the conviction was obtained.²
If that prosecutor's own jurisdiction obtained the conviction, the prosecutor must also disclose the evidence to the defendant, unless a court authorizes delay, and must investigate or make reasonable efforts to cause an investigation.³
A prosecutor who knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense the defendant did not commit must seek to remedy the conviction.⁴

The ethical expectation thus runs from disclosure to investigation to appropriate remedial action as the evidence of a wrongful conviction strengthens.⁵ Adoption has lagged, since fewer than half of the states have adopted paragraphs (g) and (h) or variations on them.⁶ An answer should therefore state the Model Rule text and recognize that a particular jurisdiction's rule may differ.

Disclosure to Court or Authority

Subparagraph (g)(1) directs the prosecutor to “promptly disclose that evidence to an appropriate court or authority.”⁷ The lead-in to paragraph (g) defines “that evidence”: the duty applies “[w]hen a prosecutor 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.”⁸ Of the post-conviction duties, this one carries the fewest conditions, because the later subparagraphs add requirements that it lacks.

The duty runs to a court or authority because the usual recipients are gone by then. Before conviction, paragraph (d) delivers favorable information to the defense and, at sentencing, to the tribunal, and a pending case supplies both.⁹ After judgment, the person best able to use evidence of innocence may be a court with power to reopen the case or an authority with power to review the conviction, and the prosecutor who happens to learn of the evidence may be neither. The rule treats disclosure, investigation, and remedial action as one connected set of obligations that begins when a prosecutor learns that a person may have been wrongly convicted.¹⁰ It names no particular recipient, so “appropriate” points to whichever court or authority can act on the information, and the prosecutor must identify one and deliver the evidence. Correcting the conviction is then that body's task.

The trigger has five parts, and each screens out a different kind of information. The prosecutor must know of the evidence, so the duty attaches to what the lawyer actually learned and not to what an unopened file might contain.¹¹ The evidence must be new, which separates information that surfaced after the verdict from proof the factfinder already weighed. A prosecutor who rereads the trial record and doubts its strength has formed a fresh opinion of old proof and has learned nothing the trial did not test.

Credibility and materiality keep the duty from attaching to every post-trial claim of innocence. A bare assertion with nothing behind it is not credible, and a detail that leaves the question of who committed the crime where it was is not material, however true it may be. Prosecutors' offices receive letters and calls asserting innocence; if each one obliged a prosecutor to approach a court, the evidence that deserves a court's attention would be lost among the rest.

The last part sets how strong the showing must be: a reasonable likelihood that the defendant did not commit the offense.¹² The standard is aimed at innocence of the offense and not at error in the proceeding, so proof that a search was unlawful or an instruction wrong creates no duty unless it also points toward innocence. It is also lower than the standard in paragraph (h), which applies only to “clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit.”¹³ Disclosure hands the question to a body that can test it, so the prosecutor need not be sure before passing the evidence along. A duty to remedy a conviction commits the prosecutor's own office to act and calls for stronger proof.

That result turns on a feature of the text that is easy to miss. Subparagraph (1) contains no condition about where the conviction was obtained. The jurisdictional condition appears in subparagraph (2), which applies only “if the conviction was obtained in the prosecutor's jurisdiction.”¹⁴ The drafters attached the condition to the later duties, so the duty to disclose to a court or authority reaches a conviction wherever it was obtained. Evidence of innocence can surface in an office with no connection to the original case, and that prosecutor often has no power to reopen anyone else's conviction. Delivery to a court or authority carries the information to a body that does.

A stem that reports a claim of innocence leaves open whether anything supports it, and that is the question that decides whether the duty has attached.

The command is to disclose promptly. A convicted person may remain confined while the information sits in a prosecutor's file, so each day of delay can be a day of imprisonment that an innocent person should not have to serve.

Exam Analysis Steps

Because the duty attaches only when every part of the trigger is present, run a post-conviction problem through these questions in order:

Does the prosecutor actually know of the evidence, and not merely suspect that a file might contain it?
Is the evidence new, meaning it surfaced after the verdict and was not part of what the factfinder weighed?
Is the evidence credible, because it comes from a reliable source or is supported by other information?
Is the evidence material, because it bears on whether the defendant committed the offense of conviction?
Does the evidence create a reasonable likelihood that the defendant did not commit the offense, a lower threshold than clear and convincing proof of innocence?
Where was the conviction obtained? The answer leaves the duty to disclose to a court or authority intact and matters only to the duties in subparagraph (2).

Steps three and five carry most of the weight on an exam, because stems tend to supply an assertion of innocence without saying what supports it, or to describe a trial flaw without saying whether anything points toward innocence. Step six is the usual trap. A stem that places the conviction in another state removes the duties that depend on the prosecutor's own jurisdiction, which come next, and leaves the duty to disclose to a court or authority in place.

Same-Jurisdiction Duties

Paragraph (g)(2) conditions a second layer of duties on a single fact: the added duties apply only “if the conviction was obtained in the prosecutor's jurisdiction.”¹⁶ The trigger is the one that starts subparagraph (1), and subparagraph (1) still binds every prosecutor who has the knowledge, requiring prompt disclosure to an appropriate court or authority.¹⁷ A prosecutor whose own jurisdiction produced the conviction therefore owes that disclosure and two more duties, so the place of conviction decides how much the prosecutor must do.

The first added duty is to “promptly disclose that evidence to the defendant unless a court authorizes delay.”¹⁸ The second is to “undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”¹⁹ Disclosure puts the information in the hands of the person with the most at stake, who can use it with a lawyer's help if one can be found. Investigation addresses the possibility that new evidence is incomplete or unverified, and the jurisdiction that obtained the conviction is the one positioned to look into it.

The jurisdictional condition tracks who can act and who answers for the result. A prosecutor in the convicting jurisdiction works in the system that produced the verdict, can reach its files and the agencies that built the case, and carries responsibility for what that system produced. A prosecutor elsewhere holds the evidence by happenstance and has no authority over the other jurisdiction's file or witnesses. For that prosecutor the narrower duty fits: put the information before a court or authority that can act. The text asks where the conviction was obtained and says nothing about who tried the case, so a prosecutor who joined the convicting office years later and never touched the file is as bound by subparagraph (2) as the lawyer who won the verdict.

The delay exception reflects the same concern for who should decide. Telling the defendant at once will sometimes damage a legitimate inquiry, as when the new evidence points to another person who has not been found. The rule does not leave that judgment to the prosecutor. Delay must be authorized by a court, which echoes paragraph (d), where a protective order of the tribunal is what relieves a prosecutor of the sentencing disclosure duty.²⁰ In both places the prosecutor has a stake in the outcome, and a neutral judge can weigh the competing interests without one. A prosecutor who simply decides to wait, however sensible the reason, has departed from a text that conditions delay on a court's authorization.

The investigation duty comes in two forms joined by “or”: the prosecutor may investigate personally or make reasonable efforts to cause an investigation, so enlisting another body can satisfy it. Both forms are measured by effort, and the object is to determine whether the defendant was convicted of an offense he did not commit, so the duty is one of finding out and guarantees no particular conclusion. A stronger duty to seek a remedy arises under paragraph (h) only when the prosecutor knows of clear and convincing evidence of a wrongful conviction in the prosecutor's jurisdiction.²¹

A stem that gives two prosecutors the same report tests one variable: where the conviction was obtained.

Hypothetical Illustration

A state laboratory retests biological material from a robbery-homicide for which a man was convicted four years ago. The result excludes him and matches a person already in a database. The report comes from an accredited laboratory, was never before the jury, and bears directly on who committed the offense. The county prosecutor whose office won the conviction reads it, and so does a prosecutor in a different state who learns of the result in an unrelated matter. The county prosecutor must disclose the evidence to an appropriate court or authority, tell the defendant promptly unless a court authorizes delay, and investigate or make reasonable efforts to cause an investigation. The out-of-state prosecutor must disclose the evidence to an appropriate court or authority and owes nothing further under paragraph (g)(2), because that conviction was not obtained in her jurisdiction.

Students miss this material in three ways. Excusing the out-of-state prosecutor entirely forgets that subparagraph (1) carries no jurisdictional condition. Requiring that prosecutor to notify the defendant and open an investigation carries the conditioned duties of subparagraph (2) into a jurisdiction where they do not apply. Treating the timing of notice to the defendant as the prosecutor's call overlooks that the text permits delay only if a court authorizes it.

These duties presuppose that something remains to be disclosed and examined. An inquiry into a possible wrongful conviction accomplishes little if the physical evidence and files were discarded once the appeal ended, so duties of this kind work only alongside preservation of information and evidence after conviction.²² The ABA's Standards for Criminal Justice address preservation. For felony cases they limit it to “until post-conviction litigation is concluded or time-limits have expired,” which could prove too short if new forensic technology is later developed or new evidence comes forward. In death penalty cases they demand preservation “until the penalty is carried out or is precluded.”²³ The preservation requirement comes from the Standards, and the text of paragraph (g)(2) does not mention it.

Duty to Remedy Convictions

Paragraph (h) imposes the most demanding post-conviction duty, in a single sentence: “When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”²⁵ Four parts carry the rule. The prosecutor must know of the evidence, the evidence must establish that the defendant did not commit the offense, the conviction must have been obtained in the prosecutor's own jurisdiction, and the command is to seek to remedy the conviction. The first part is the actual-knowledge limit that also confines paragraphs (d) and (g). The other three each draw a line of their own, and the clearest way to see them is to start with the duties just below this one.

Paragraph (g) is triggered by new, credible, and material evidence creating a reasonable likelihood of innocence, and its duties are to disclose to a court or authority and, for a conviction from the prosecutor's own jurisdiction, to disclose to the defendant and investigate.²⁶ Each of those duties passes information along or finds out more. A reasonable likelihood of innocence is a serious doubt about the verdict, and paragraph (g) sends it to people who can test it. Paragraph (h) raises both the proof and the kind of duty. The evidence must now be clear and convincing and must establish innocence, and the prosecutor must act to remedy the conviction.²⁷

The duty becomes one of action because of whose conviction is at stake. A conviction obtained in the prosecutor's jurisdiction is the product of the system the prosecutor serves, and a prosecutor's duty to the accused does not end with the verdict. Prosecutors are responsible for seeing that true justice is done, including by rightly identifying the accused, and they “should keep in mind their obligation to the accused at every stage of the proceeding.”²⁸ Once a prosecutor holds firm proof that an innocent person is serving a sentence the jurisdiction obtained, a rule that stopped at disclosure would leave the next step to others while the injury continued. The high evidentiary threshold fits the heavier duty. Because the prosecutor's own side must act, the rule asks for strong proof before it commands that action.

The jurisdictional phrase also separates paragraph (h) from the duty below it. Subparagraph (g)(1) has no condition about where the conviction was obtained, and only (g)(2) is limited to convictions obtained in the prosecutor's jurisdiction.²⁹ Paragraph (h) carries the same limit in its own words: “in the prosecutor's jurisdiction.”³⁰ A prosecutor in one state who finds clear and convincing proof that a man convicted in another state is innocent must therefore disclose it to an appropriate court or authority, but paragraph (h) does not require that prosecutor to seek to remedy a judgment obtained elsewhere.

The text says shall, so a prosecutor who has the knowledge in the home jurisdiction has no discretion to weigh whether to act. The verb is seek, which asks for pursuit of a remedy, and the rule names no particular step, so the prosecutor must use whatever procedures the jurisdiction offers for undoing a wrongful conviction. A prosecutor who investigates, confirms the proof, and then does nothing has stopped where this paragraph begins to bind.

Hypothetical Illustration

A county prosecutor learns that testing of a hair found at the scene of a burglary-homicide shows it did not come from the man convicted of the offense in that county two years earlier. The result comes from an accredited laboratory and the jury never heard it, but the hair could have been left by a visitor on another day, and nothing else ties the new profile to the crime. The evidence is new, credible, and material, and it creates a reasonable likelihood that the defendant did not commit the offense. The prosecutor must disclose it to an appropriate court or authority, disclose it to the defendant unless a court authorizes delay, and investigate or make reasonable efforts to cause an investigation. The evidence does not establish innocence by clear and convincing proof, so paragraph (h) does not yet require a remedy.

The investigation that paragraph (g) requires can carry the case up a level.

The two scenes differ in how much the evidence proves. In the first, a doubt that others can test calls for disclosure and investigation. In the second, the doubt has become a firm showing of innocence, and the duty shifts from passing information along to acting on it.

Exam Analysis Steps

Because paragraph (h) sits on top of paragraph (g) and adds conditions of its own, run a problem through these questions in order:

Does the prosecutor actually know of the evidence?
How strong is the evidence? A reasonable likelihood of innocence is a paragraph (g) problem, and paragraph (h) is reserved for clear and convincing evidence establishing that the defendant did not commit the offense.
Where was the conviction obtained? Paragraph (h) applies only to a defendant convicted in the prosecutor's own jurisdiction, while the duty to disclose to an appropriate court or authority reaches a conviction anywhere.
If the evidence is strong enough and the conviction is local, the prosecutor must seek to remedy the conviction, in addition to the disclosure and investigation duties that the same evidence will ordinarily also trigger.

Step two does the most work on an exam, because stems signal the standard through their wording. Evidence described as raising a serious question about the verdict, or as pointing toward another suspect, describes a reasonable likelihood and calls for disclosure and investigation. Evidence described as conclusively showing that the convicted person could not have committed the offense describes clear and convincing proof and calls for a remedy. The usual error is to treat the stronger showing as one more reason to disclose, when the added duty is to act. The opposite error is to wait for proof beyond a reasonable doubt, which the text does not require. As with paragraph (g), fewer than half of the states have adopted paragraphs (g) and (h) or variations on them, so an answer should state the Model Rule text and recognize that a particular jurisdiction's version may differ.³¹

Why the Rule Was Amended

In Commission for Lawyer Discipline v. Hanna, a Texas court asked whether a disciplinary rule worded exactly like the pre-2008 version of Model Rule 3.8(d) required prosecutors to disclose potentially exculpatory information that reached them after a conviction.³³ The Commission for Lawyer Discipline had acted against two prosecutors, Healey and Hanna, who became aware of such information in Estrada's case, and it relied on Texas Rule 3.09(d). That rule was modeled on Model Rule 3.8, and its language is identical to Model Rule 3.8(d) as it stood before the 2008 amendments.³⁴ The court held that Rule 3.09(d) imposed no post-conviction duty of disclosure on Healey and Hanna for the conduct at issue.³⁵ The decision shows what the old text left unsaid, and paragraphs (g) and (h) were written to fill that gap.

The court started with the rule's words, and they did not settle the question. Nothing in the plain language states whether the requirement to disclose exculpatory evidence timely reaches events after conviction, and the comments to the rule do not address its intended reach.³⁶ The structure of the rule pointed toward a pre-conviction duty. Viewing Rule 3.09 as a whole, the court noted that no other portion of the rule contemplates post-conviction conduct or duties, which it took as some indication that paragraph (d) imposes no post-conviction duty of disclosure.³⁷

The ABA's own history of the amendments weighed most heavily against the Commission. The Criminal Justice Section's report on the proposed amendments to Model Rule 3.8 said they were “designed to provide clear guidance to prosecutors concerning their minimum disciplinary responsibilities.”³⁸ The section noted Imbler's language in its report to the ABA House of Delegates but stated that Model Rule 3.8(d), worded identically to Rule 3.09(d), did not codify Imbler's ethical standard for prosecutors. By adopting the amendments, the ABA in effect agreed with that conclusion that the rule as written did not impose a post-conviction duty of disclosure. The court found the ABA's decision significant because Texas Rule 3.09(d) was worded identically to Model Rule 3.8(d) before the 2008 amendments.³⁹

The court's conclusion rested on fair warning. A rule is fatally vague if it exposes a potential actor to some risk or detriment without fair warning of the conduct it proscribes. Based on the guidance available to Healey and Hanna when they learned of the potentially exculpatory information, the court did not believe an ordinary lawyer would have understood Rule 3.09(d) to impose a post-conviction duty of disclosure. To hold otherwise would belatedly read such a duty into a rule that had never been applied that way in the more than a quarter century since its enactment.⁴⁰

The court limited its holding in two ways. It said the decision should not be read to mean that prosecutors owe no duty to disclose exculpatory information after conviction; the holding was only that Rule 3.09(d) did not impose such a duty on these facts and so could not support the Commission's disciplinary actions. It also noted that Texas had since amended Article 39.14 to codify a prosecutorial post-conviction duty of disclosure, and it declined to say how Rule 3.09(d) would apply in a case arising after that amendment.⁴¹

The 2008 amendments answer the objection that carried the day in Hanna. Paragraph (g) begins with a prosecutor who “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense,” and paragraph (h) concerns a defendant “convicted of an offense that the defendant did not commit.”⁴² A prosecutor in a state that has adopted them cannot claim the rule gave no warning of a post-conviction duty. Adoption has been uneven, however, since fewer than half of the states have adopted paragraphs (g) and (h) or variations on them.⁴³ Where a state's rule still tracks the pre-2008 text, Hanna's fair-warning reasoning is the argument a prosecutor would make, though one Texas decision does not settle the question elsewhere.

Hypothetical Illustration

After a robbery conviction becomes final, a prosecutor in State One learns that a laboratory result excludes the defendant. State One's disciplinary rule tracks the pre-2008 Model Rule 3.8(d), has never been applied to post-conviction conduct, and no other statute addresses the subject. The prosecutor leaves the result in the file, and disciplinary counsel charges a violation of the rule. In State Two, which has adopted paragraphs (g) and (h), a prosecutor from the office that won a conviction learns of an identical result, assumed to be new, credible, and material evidence creating a reasonable likelihood of innocence, and also stays silent. The State One charge turns on whether the rule's text gave fair warning of a post-conviction duty, which the pre-2008 text arguably did not. The State Two prosecutor has violated paragraph (g), because the rule states the duty expressly.

Two mistakes follow from reading Hanna too broadly or too narrowly. One is to say prosecutors owed no post-conviction duty before 2008, when the court said only that this rule, on these facts, could not support discipline. The other is to assume that paragraphs (g) and (h) bind every prosecutor, when they bind only those in jurisdictions that adopted them. A problem on post-conviction nondisclosure therefore calls for identifying which text the jurisdiction uses before applying either line of analysis.