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On Thursday, November 14, the Arizona Supreme Court passed a new amendment, Rule 42, ER 3.8, to the Arizona Rules of Professional Conduct that requires prosecutors in the state to turn over any exculpatory evidence to a defense team during or after a criminal trial.

The text of the amendment reads,”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 the court in which the defendant was convicted and to the corresponding prosecutorial authority and to the defendant’s counsel.
  2. If the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable effort to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter.”

The amendment, according to defense attorney Larry Hammond, is an important step forward in helping to ensure that no  innocent people will be sitting in Arizona prisons.

Although defense attorneys in the state are lauding the passage of the amendment, the state’s prosecutors are not.

Maricopa County Attorney Bill Montgomery filed an objection to the proposed amendment in October writing that Arizona prosecutors already “fully embrace their roles as ministers of justice when it comes to righting wrongful convictions.”

Another prosecutor, Pima County Attorney Barbara LaWall, wrote in her objection filed with the Arizona Supreme Court that she was “worried the new rule would force prosecutors to investigate the numerous claims of innocence by the state’s prison populations.”

However, Supreme Court Chief Justice Rebecca White Berch disagreed with prosecutors’ objections to the amendment.  In an email to The Arizona Republic, Berch wrote that the new rule will force prosecutors to be ministers of justice and not just advocates who seek to “obtain convictions at all costs.”

She added that prosecutors should be held to a higher standard and should take the necessary steps to correct  wrongful convictions and any other errors that occur in Arizona’s  justice system.

Arizona Rule 42, ER 3.8, Special Responsibilities of a Prosecutor, can be found here.