Model Ethical Standards for Prosecutors Facing Post-Conviction Claims of Innocence

1. Model Ethical Standards for Prosecutors Facing Post-Conviction Claims of Innocence David M. Siegel & Judith Goldberg

2. Why Model Ethical Standards Are Needed • Rights to testing by statutes or court rules will still be implemented in an adversarial context, with procedural requirements. • Defendants will always be the initial proponents of new science, and will always bear the burden of the presumed validity of their convictions.

3. Overview of Model Ethical Standards • When Faced with a Defendant’s Post-Conviction Claim of Innocence Requesting the Application of New Science, the Prosecutor Shall: • Promptly Seek the Fullest Accounting of Truth • Effect the Fullest Disclosure Possible • Use the Most Accurate Science

4. Goals of these Standards • Acceptability to All Members of the C/J System • Perception as Fair and Reasonable by All Members of C/J System and by Lay Persons • Recognition as Desirable by Prosecutors

5. Applicability of these Standards Post-Conviction “Ordinary” ethical standards already apply through direct appeal Claims of Actual or Factual Innocence Actual – legally insufficient evidence of guilt Factual – demonstrable proof of innocence Seeking Use of “New” Science Newly available or newly admissible

6. Counterarguments to Model Standards - I • Prosecutor’s Obligation to Promptly Seek the Fullest Accounting of Truth • The final, valid conviction is the truth. • Finality based upon factually inaccurate premise is not genuine finality. • That’s not the Prosecutor’s job. • The Prosecutor’s job is seeking justice rather than simply convictions. • The Defendant should submit these claims to the adversarial process for a determination of truth.

7. Counterarguments to Model Standards - II • Prosecutor’s Obligation to Effect Fullest Disclosure Possible • This would require permanent retention of all evidence and files in all cases. • These are essential Procedural Issues. • Who has obligation to maintain evidence and files? • Where should evidence and files be maintained? • Who can have access to evidence and files? • How long must evidence and files be maintained? • Liability for failure to maintain files and evidence?

8. Counterarguments to Model Standards - III • Prosecutor’s Obligation to Use Most Accurate Science • Do we sacrifice legal finality on the altar of scientific advancement? • Finality based upon scientifically demonstrably factually inaccurate premise is not genuine finality. • What is “most accurate” as science constantly evolves? • At a minimum, most accurate science means that which prosecutors use in current cases. • At a maximum, most accurate science means that which is admissible by highest court in jurisdiction.

9. Model Ethical Standards Would Proactively Address Procedural Issues • Chain of Custody – • The “next defendant” or “real perpetrator” argument • The “Foreign Lab” argument (i.e., one in a foreign jurisdiction, e.g., California) • The “How do we know the defense didn’t tamper with it“ argument • Authentication • The “next defendant” or “real perpetrator” argument • The “If it can’t be authenticated first as it would be at trial, it will never be admitted, so it’s not relevant” argument • Statutes of Limitations / Time bars • Cost / Funding • The “It will be cheaper if our lab does it” argument • Prevent Stalling • The “We just need more time to ensure we know what evidence there is” argument • Disclosure • The “ongoing investigation” argument

10. Why Prosecutors Benefit from Model Ethical Standards • Quid Pro Quo • Full Disclosure of Expert’s Analysis as a Matter of Right • Resource Conservation by avoiding protracted litigation • Increased Public Confidence in Reliability of C/J System • Increased Clarity of Prosecutor’s Obligations • Reduced Opportunity for Defense Arguments

11. What Model Ethical Standards Mean for Defendants • Foregoing Procedural Protections • Foregoing the Ability to Obscure Truth