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 state
http://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 Oklahoma
Two 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 Disclose
 Pre-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
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person as the culprit.
YES
Admission of guilt by 3rd party.
YES
Promise made to defendant by police in return for an
admission of guilt.
YES
Inconsistent 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
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witness's testimony.
YES
Leniency agreements made with witnesses in exchange for
testimony.
YES
Arrest photographs of the defendant when those photos do not
match the victim's description?
YES
DNA 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
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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 resources
 Prosecutors 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 continued
 Prosecutors 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 Duty
 Prosecutors 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 Duty
 Guidance 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 Duty
 Admittedly, 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 Trust
 Seem 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 support
In 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 Continued
 By 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.
 YES
 Testimony 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.
Conclusion
 Wrongful convictions = Bad
 A 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.