Prosecutors Can’t Ignore Post-Conviction Evidence: N.Y. Panel

By Mindy L. Rattan

A prosecutor’s duty of competence includes an obligation to investigate credible exculpatory evidence that is revealed after a defendant is convicted, the New York City bar’s ethics committee said in an Apr. 13 opinion.

The committee’s opinion underscores that a lawyer’s general duty of competence supplements the more specific duties enumerated by other ethics rules.

New York Rule of Professional Conduct 3.8(c) sets forth a prosecutor’s obligations when the prosecutor knows of new evidence that a defendant may have been wrongly convicted. Subsection (d) outlines when a prosecutor must seek to remedy a wrongful conviction. And (e) provides a safe harbor for violations of 3.8(c) and (d) if a prosecutor makes a “good faith, but erroneous, judgment.”

The committee said the rules are clear, but it wanted to make four points.

  • 1. Ethics rules for prosecutors are for disciplinary purposes only. They are not meant to limit what prosecutors “can or should do to rectify wrongful convictions.”
  • 2. The committee said that the duty of competence under RUle 1.1 can require a prosecutor to act on potentially exculpatory evidence even when Rule 3.8(c) isn’t triggered. "[P]rosecutors have not only a general duty to seek justice but also a professional obligation of competence,” the committee said. Even if Rule 3.8(c) doesn’t apply, in “some situations, ignoring new potentially exculpatory evidence will reflect incompetent prosecutorial work.” The committee clarified that “Rules 3.8(c)–(e) were not meant to establish the full extent of prosecutors’ post conviction duty, as a matter of competence, to investigate and rectify wrongful convictions.”
  • 3. Rule 3.8(c) can be triggered in numerous ways, including by new forensic evidence, a new alibi, or new impeachment evidence. It can also be triggered, the committee said, when the defendant was tried and convicted or after a guilty plea.
  • 4. The ethical requirements imposed by Rule 3.8(c) and (d) aren’t dictated by a prosecutor’s obligations under procedural rules, statutes or case law. And the committee said the words in the ethics rules generally have their ordinary meaning and don’t have a more restrictive interpretation as defined by statute. For example, “new” evidence under Rule 3.8(c) can include evidence that would be excluded under a post-conviction statute’s definition of “newly discovered evidence,” which would not, under certain statutes, include evidence that could have been discovered by the time of trial. Similarly, “evidence” under the ethics rules includes information that may not be admissible in court.
But the committee said the term “knows” should be understood in its legal sense, in addition to its ordinary sense. “Knows” under the ethics rules includes actual knowledge, but also may include "[c]onscious avoidance” of a fact. While a prosecutor’s failure to uncover new, exculpatory evidence due to negligence may not result in a violation of rule 3.8(c), it may still be a competence violation, the committee said.

The opinion is N.Y.C. Bar Ass’n Comm. on Prof’l Ethics, Op. 2018-2, 4/13/18.

To contact the reporter on this story: Mindy L. Rattan in Washington at

To contact the editor responsible for this story: S. Ethan Bowers at

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