Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases

For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system.In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship.Her voice has made a difference.For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h).The resulting resolution, which was supported by a number of entities, was adopted.As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know 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" and requires prosecutors to "seek to remedy the conviction" if they have clear and convincing evidence that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit.This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors.As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report.I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and ( h), which is what the relevant entity in my home state of Pennsylvania recently recommended.