To allow the rights of one person to be violated puts at risk the rights and liberties of all.

Adopting MRPC 3.8(g) and (h)

in Oklahoma

To allow the rights of one person to be violated puts at risk the rights and liberties of

all.

We have come a long way!http://youtu.be/zrzMhU_4m-g?t=1m27s

Wrongfully convicted in the United States

298 convictions overturned based on DNA evidence.Average sentence served by exonerated individual is 13 years.70% of exonerated individuals are minorities.40% of actual perpetrators are identified after exoneration.

DNA Exonerations by statehttp://www.innocenceproject.org/news/StateView.php

Wrongfully convicted in Oklahoma

Ten Oklahomans have been exonerated through DNA evidence.

At least another 17 have been released based on non-DNA evidence and were either acquitted on retrial or charges were dropped.

http://www.victimsofthestate.org/OK/index.html

Recent activity in OklahomaTwo ADAs fired by David Prater after investigation shows

they failed to reveal evidence they were required to disclose under Brady and Rule 3.8(d)

Current Duty to DisclosePre-trial: Brady v. Maryland and its progeny

After a pre-trial request from a defendant, prosecutor must disclose evidence or information that is favorable to defendant in showing innocence, or which helps impeach testimony of a witness.

Must also disclose evidence that my help reduce the defendant’s sentence. (mitigating evidence)

Duty found in Oklahoma Rule 3.8(d)(d) make timely disclosure to the defense of all evidence

or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Is there a duty to disclose this?Statement to police from eyewitness identifying another

person as the culprit. YESAdmission of guilt by 3rd party.YESPromise made to defendant by police in return for an

admission of guilt. YESInconsistent statements from witness concerning what they

saw. YES

Is there a duty to disclose this?An agreement not to prosecute a witness in exchange for the

witness's testimony. YESLeniency agreements made with witnesses in exchange for

testimony. YESArrest photographs of the defendant when those photos do not

match the victim's description? YESDNA evidence showing absolute innocence discovered after

conviction. NO!

How is this possible?If the evidence is unknown and unknowable at the time of

the trial, how can there be a duty to disclose it?No duty, no liability!As a result, the Rules of Professional Conduct are the best

way to modify prosecutorial conduct.

Does this argument make sense for post-conviction evidence?

Is there a reason we fail to disclose evidence of innocence post-conviction?

First: Oklahoma has no rule giving guidance on what evidence should be disclosed, or how to disclose it.

Second: Prosecutors have limited time and resources.Third: Cognitive Processes encourage Prosecutors to

devalue or overlook evidence of innocence. Fourth: Prosecutors fear vague language which may

create an over inclusive duty.Fifth: Finality and public trust

Rule 3.8(g) and (h)(g) 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.

(h) 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.

Rule 3.8(g) and (h)(g) 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.

(h) 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.

Limited time and resourcesProsecutors must take on a large number of

cases, but have only limited resources.Requiring them to re-examine closed cases

when new evidence is revealed is time consuming.

Is this really a good reason to allow the continued incarceration of innocent people though?

Because correcting wrongful conviction is so important, adopting Rule 3.8 (g) and (g) will ensure prosecutors take time to examine all evidence, even when they are busy.

Cognitive Causes Confirmation Bias – Humans actively search

out evidence that supports their view, and fail to recognize contrary evidence.

Selective Information Processing – Humans are more likely to accept as true evidence which supports their conclusions.

Cognitive Dissonance – Humans seek to avoid the uneasy feeling of contradiction by seeking ways to justify their beliefs in light of evidence to the contrary.

Cognitive Causes continuedProsecutors are likely to overlook, discredit

or undervalue evidence of innocence.As a result, a rule which requires a good faith

determination on the materiality of each article of new evidence will force prosecutors to slow down and weigh evidence instead of glossing over it.

Vague Drafting/Undefined DutyProsecutors fear that the terms found in the

rules as written will subject them to a host of ill-defined duties.

What time is appropriately “prompt”Against what standard should evidence be

weighed to determine if it is material?How far does the duty extend in time?

Vague Drafting/Undefined DutyGuidance can be found in similar terms found in other

rules. eg. “reasonable efforts” is already found in 3.8(b)

Replace vague terms such as “reasonable likelihood” with “reasonable probability” and “promptly disclose” with “make timely disclosure”

Safe harbor found in Comment [9]. “A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such a nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.”

Vague Drafting/Undefined DutyAdmittedly, there are a few terms which need

ironing out, however there is no reason to believe that a working draft cannot be written which resolves these issues.

Finality and Public TrustSeem to be straw men, but have really been

raised.Finality is a practical necessity, but is it a

good unto itself? I don’t see how it can be in light of what it aims to prevent (actual justice).

Should people be kept in prison to protect the image of the State? This issue is not commonly voiced, but is a real concern for elected officials.

The interests of the Wrongfully Convicted

Justice

Another reason in supportIn Oklahoma:A wrongfully convicted person is entitled to receive $175,000 for the entirety of his wrongful incarceration as long as he did not plead guilty and was imprisoned solely as a result of the wrongful conviction. Effective: 1978; Amended most recently: 2003.

Read the statute: 51 Okl. St. - 154

Compensation ContinuedBy adopting a rule which aims to catch wrongful

convictions early, the State may be able to avoid amassing further financial obligations.

However-The problem is that the financial incentive to right

wrongful convictions only makes sense during the time when claims are arguably under the $175K cap.

Past the point where maximum damages can be won, it is cheaper to let wrongful conviction go undiscovered for as long as possible due to inflation.

New Disclosure Duty Quiz-Bloody bandana found on fence in backyard of house

where murder took place. New testing indicates there is hair from the victim, and blood which does not match the person convicted for the murder.

YESTestimony used to impeach defendant’s alibi relies on

digestion of stomach contents to determine time of death. After conviction, new scientific study shows that digestion rates should be calculated differently, making defendant’s testimony consistent with the evidence.

Depends. Prosecutor must make a good faith evaluation of the materiality of the evidence when weighed against the other facts.

ConclusionWrongful convictions = BadA rule which favors disclosure will help

reduce the number of innocent individuals in our prisons.

Rules 3.8(g) and (h) provide a reasonable guideline for prosecutors in determining when to disclose new evidence.