The Maryland Court of Appeals recently amended a rule governing Maryland prosecutors’ postconviction obligations. The MSBA Criminal Law & Practice Section’s Legislative Committee worked with the MSBA’s Rule of Practice Committee to help bring about this outcome.
The Rule in question was Maryland Rule 19-303.8 – Special Responsibilities of a Prosecutor, which is based on ABA Model Rule 3.8. The rule change originated in footnote 21 of Att’y Grievance Commission v. Cassilly, where the Court stated “… ABA Model Rule 3.8 has been amended to expressly address postconviction obligations for prosecutors … we think it prudent that a similar amendment of Rule 3.8 be considered by our Rules Committee, and we refer the matter to the Rules Committee.”
The ABA amended its Model Rule 3.8 in 2008 to add subsections (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.
The Court opined that Maryland should consider adopting subsections (g) and (h) so that a prosecutor’s obligations are expressly stated in Maryland’s version of the rule rather than implicitly stated elsewhere in the rule, specifically subsection (d).
The Court’s Rules of Practice and Procedure Committee requested comment on the matter from the MSBA.
The MSBA Rules of Practice Committee co-chairs Tom Dolina and Tom Stahl in turn sought advice from the MSBA’s Criminal Law & Practice Section, chaired by Margaret “Mimi” Teahan. The section’s legislative chair, Doyle Neimann, responded:
“The Legislative Committee for the Criminal Law and Practice Section has discussed the proposal to add the provisions in the Model Rules to the Maryland Rules that make clear the continuing duty of a prosecutor to reveal exculpatory and mitigating evidence even after the conclusion of a criminal case, including in the context of any post conviction proceeding that could or might be initiated. We are unanimous in support of that proposal. We agree absolutely with the Court of Appeals that such a requirement is implicit in what has already been set out – as well as consistent with the duty of a prosecutor to do justice and not just to prosecute cases.”
Dolina and Stahl communicated the comment back to the Court. After receiving the MSBA’s input, and that of other interested parties, the Court changed the Rule to incorporate paragraphs (g) and (h).
Maryland Rule 19-303.8 now expressly states the prosecutor’s postconviction obligations. Practitioners should note, though, that Maryland Rule 19-303.8 differs from ABA Rule 3.8 in one respect. It lacks a provision that bars prosecutors from subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client, subject to certain exceptions.
The MSBA takes pride in being the voice of the profession, representing attorneys in a variety of practice areas, demographics, and experience levels. The MSBA regularly engages in advocacy efforts to further the interest of Maryland attorneys, their clients, and the profession as a whole, which includes testifying before state legislative committees and providing comment on proposed rule changes.