57 RI Bar J., No. 2, Pg. 37. Prosecutors' New Ethical Duty Relating to Wrongful Convictions.

• Author: Niki Kuckes, Esq.(fn1)

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 2, Pg. 37.

Prosecutors' New Ethical Duty Relating to Wrongful Convictions

Rhode Island Bar JournalSeptember/October 2008 Volume 57, No. 2, Pg. 37Prosecutors' New Ethical Duty Relating to Wrongful ConvictionsNiki Kuckes, Esq.(fn1) Associate Professor of Law at the Roger Williams University Law School,

Criminal prosecutions are inevitably marked by ambiguities, surprises and turn-abouts in the evidence. Prosecutors have all experienced such events: A key eyewitness recants her identification of the alleged perpetrator. New evidence calls into question the complaining witness's motives. Fingerprint analyses or DNA test results match a suspect other than the defendant. A different suspect confesses. If a prosecutor learns of such information before or at the trial, the prosecutor's ethical duty is clear - the prosecutor must disclose to the defense. However, it might surprise a layperson to learn that, until recently, outside of the trial context, a prosecutor, holding evidence suggesting a defendant may not be guilty, was not ethically required to share that evidence.

Traditionally, under American Bar Association (ABA) Model Rule of Professional Conduct 3.8(d), (fn2) adopted verbatim in Rhode Island's ethical rules, (fn3) a prosecutor who knows of so-called "exculpatory evidence" - defined as information that "negates the guilt of the accused or mitigates the offense" - has an ethical duty to make "timely" disclosure to the defendant (usually, in advance of trial). (fn4) This duty also extends to the sentencing process. (fn5) This ethical standard is not as significant as it might be, however, since the law imposes almost the same duty. Constitutional due process requires a prosecutor, prior to trial, to give the defendant evidence that tends to negate guilt or mitigate the gravity of the offense. (fn6) Thus, a prosecutor who learns of exculpatory evidence before trial is both ethically and legally bound to turn it over to the defense. If the exculpatory evidence does not simply call the defendant's guilt into question but actually establishes his innocence, the prosecutor is ethically bound to dismiss the charges. (fn7)

The prosecutor's duty to disclose exculpatory evidence before trial is scarcely surprising, and indeed, is an essential aspect of the criminal system...