861 Amendments to the Pennsylvania rules of professional conduct relating to special responsibilities of a prosecutor

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CH. 81 ]

Amendments to the Pennsylvania Rules of Professional Conduct Relating to Special Responsibilities of a Prosecutor

[40 Pa.B. 2516]
[Saturday, May 15, 2010]

 The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it adopt the amendments to Model Rule of Professional Conduct 3.8 that were approved by the American Bar Association (ABA) in February 2008 and amend Pennsylvania Rule of Professional Conduct (PA RPC) 3.8, as set forth in Annex A.

 The proposed changes to PA RPC 3.8 include the addition of paragraphs (f) and (g) and accompanying Comments (5), (6) and (7). Comment (1) would be amended to reword one sentence and to add one clause and one sentence.

 The language of the proposed amendments in Annex A is identical to the language of the recent revisions to the ABA Model Rule, although in the ABA version the new paragraphs are designated (g) and (h) and the new Comments are numbered (7), (8) and (9).

 The genesis and development of the Model Rule provisions is explained in a comprehensive Report to the ABA's House of Delegates (Report) prepared by that organization's Criminal Justice Section. The Report is available on the ABA's web site at http://www.abanet.org/cpr/mrpc/model_rules.html. According to the Report, the process that led to the recommendation for adoption of the Model Rule changes involved significant input from State and Federal prosecutors and representatives of the criminal defense bar. The Report develops, from a legal and ethical perspective, the underlying premise that prosecutors have professional duties upon learning that a wrongful conviction may have occurred. The Report also recognizes that one of the most fundamental professional obligations of a criminal prosecutor is to rectify the conviction of an innocent person.

 The proposed provisions rectify the omission of this fundamental obligation from the current version of the Rule and provide guidance to prosecutors concerning their minimum disciplinary responsibilities. Guidance is achieved by identifying three prosecutorial duties (disclosure, investigation, and remedial action) and defining the triggering point for each of those duties. Recognizing that individual cases and jurisdictions differ, the drafters did not prescribe particular investigative steps and remedial measures that must be pursued.

 Proposed paragraph (f) and proposed Comment (5) to PA RPC 3.8 address the duty to disclose and the duty to investigate. When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a defendant outside the prosecutor's jurisdiction was convicted of a crime that the defendant did not commit, the prosecutor must promptly disclose that evidence to an appropriate court or authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction occurred within the prosecutor's jurisdiction, the prosecutor must make prompt disclosure to the defendant unless a court authorizes delay, and undertake further investigation to determine if the defendant is in fact innocent.

 Proposed paragraph (g) and proposed Comment (6) to PA RPC 3.8 address the duty to take remedial measures. Once a prosecutor knows of clear and convincing evidence establishing that the defendant was convicted of a crime that the defendant did not commit, paragraph (g) requires that the prosecutor seek to remedy the conviction.

 The mens rea standard in paragraphs (f) and (g) is ''knows,'' which under both the Model Rule and PA RPC 1.0(f) ''denotes actual knowledge of the fact in question.'' Proposed Comment (7) explains that a prosecutor does not violate the Rule if the prosecutor, in the exercise of independent judgment, erroneously determines that the new evidence is insufficient to trigger the obligations of paragraphs (f) and (g), as long as the prosecutor acts in good faith.

 Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P. O. Box 62625, Harrisburg, PA 17106-2625 on or before July 2, 2010.

By The Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE M. BIXLER, 
Secretary of the Board

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart A. PROFESSIONAL RESPONSIBILITY

CHAPTER 81. RULES OF PROFESSIONAL CONDUCT

Subchapter A. RULES OF PROFESSIONAL CONDUCT

§ 81.4. Rules of Professional Conduct.

 The following are the Rules of Professional Conduct:

ADVOCATE

Rule 3.8. Special Responsibilities of a Prosecutor.

 The prosecutor in a criminal case shall:

*  *  *  *  *

 (f) 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.

 (g) 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.

Comment

 (1) A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice [and], that guilt is decided upon the basis of sufficient evidence[. Precisely how far the prosecutor is required to go in this direction], and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which [in turn] are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

*  *  *  *  *

 (5) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor's jurisdiction was convicted of a crime that the person did not commit, paragraph (f) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor's jurisdiction, paragraph (f) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant's counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.

 (6) Under paragraph (g), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

 (7) A prosecutor's independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (f) and (g), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

[Pa.B. Doc. No. 10-861. Filed for public inspection May 14, 2010, 9:00 a.m.]