North Carolina Subcommittee Approves Rule Requiring Prosecutors to Turn Over Post-Conviction Evidence of Innocence

Pursuant to Rule 3.8(g) of the Model Rules of Professional Conduct,

When 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, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) 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.

Rule 3.8 covers the Special Responsibilities of a Prosecutor, and it was created in response to cases like the (initial) prosecution of Steven Avery. 

Only 14 states, however, have adopted some version of Rule 3.8(g), meaning that, in 36 states, a prosecutor would have no obligation to disclose that, for instance, someone else confessed to the crime that led to another defendant’s conviction. 

Yesterday, North Carolina took a big step toward becoming state #15. That’s because a North Carolina State Bar panel approved a state version of Rule 3.8(g).

“A clear decision was made by the subcommittee today that it was not comfortable making years ago,” said defense attorney Brad Bannon, referring to a decision several years not to send the prosecutors’ rule to the full committee. “We have seen these wrongful conviction cases increase in the years since, and we need to be sure that the people most able to correct that injustice — prosecutors and other lawyers — take steps to do so.”

The proposal from the ethics subcommittee now goes to the full ethics committee, which meets in October. If it is approved, it’s then sent to attorneys for comment.

The five-member subcommittee had met several times previously to discuss the rule and discussion Tuesday was brief and mostly concentrated on language to tell prosecutors that they must consider the evidence they receive and not just focus on the credibility of the source.

The discussion yesterday is important because of cases like the Sabein Burgess case, where Detective William Ritz felt that he didn’t have to disclose an alternate suspect’s confession on the ground that the confessor was lacking in credibility…with the confessor ending up being the murder.

Let’s hope that the full ethics committee does the right thing and approves this rule.

-CM