September 2015Volume 103Number 9Page 12

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Proposed rule would require prosecutors to reveal post-conviction exculpatory evidence

Under a proposed change to the Rules of Professional Conduct, Illinois prosecutors would have to disclose credible post-conviction evidence that a person found guilty is in fact innocent.

In 1924, the Illinois Supreme Court held that "[t]he state's attorney, in his official capacity is the representative of all the people, including the defendant, and it was just as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen." People v. Cochran, 313 Ill. 508, 526 (1924). This holding is the foundation of Illinois Supreme Court Rule of Professional Conduct 3.8, which states, "[t]he duty of a public prosecutor is to seek justice, not merely to convict."

Currently, Rule 3.8 requires prosecutors to disclose any exculpatory evidence to defense counsel during a criminal proceeding. The Illinois Supreme Court Rules Committee is currently considering an amendment to Rule 3.8 that would require prosecutors to reveal post-conviction exculpatory evidence when they "know[] of new credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which he was convicted" (

The ABA Model Rules of Professional Conduct already include a similar provision. The proposed Illinois rule is modeled on the ABA rule ( The proposed additions to Rule 3.8 would add subsections (g) and (h), which impose new ethical duties upon prosecutors.

Under the amended rule, prosecutors would have to promptly disclose new, credible, and material evidence that a convicted defendant is innocent. If that conviction occurred in the prosecutor's county, he or she has a further duty to inform the defendant and conduct a reasonable investigation into the effect of the new evidence.

When a prosecutor is aware of clear and convincing evidence that a convicted defendant in the prosecutor's jurisdiction is innocent, he or she must seek to remedy the conviction. These duties are substantially similar to those required by the ABA Model Rule. The proposed Illinois rule would also add a subsection (i), which would excuse a prosecutor's good faith judgment that evidence does not satisfy the standards established in the rule.

State's attorneys support change

Brian Towne, LaSalle County State's Attorney and chair of the Illinois State's Attorneys Association's board of governors, testified before the Rules Committee in support of the change. Towne says any prosecutor would already disclose post-conviction exculpatory evidence. He chose to testify before the Rules Committee because he "wholeheartedly wanted to stand up and support the change."

Towne doesn't see the new amended rule having much impact on minor infractions and misdemeanors. Instead, it will affect "more serious crimes with life-changing results." Additionally, he thinks that while larger cities may see more applications of the rule due to sheer numbers, there will not be a large impact on convictions overall.

In many situations where the new rules would apply, the triggering evidence will come from an appellate defender or defense attorney working to exonerate a convicted defendant. In other cases, it may come from a new scientific method of examining evidence.

Towne points to the so-called "Starved Rock Murders" of three Chicago socialites in 1960 as an example of a case where the ability to properly test for DNA might have changed the outcome of a case. In the 1960s, DNA testing was not available, and evidence was not handled with such testing in mind.

In 2004, Chester Weger, who was convicted of the murders, had requested DNA analysis of the evidence. According to Towne, after Weger was tried, convicted, and his appeals exhausted, the physical evidence was viewed and handled by many people unrelated to the case, including school groups, civic clubs, and student journalists.

In some instances, people would wear Weger's coat so that they could be photographed in it. His coat had also been stored in the same bag as the victims' clothing. Blood could have transferred from the clothes to the coat during storage.

The state conducted an analysis on the evidence to determine its viability for DNA testing. It was determined that the evidence had been spoiled and could not be conclusively tested. Weger has maintained his innocence since his conviction.

In situations where new exculpatory evidence is available, Towne says that the procedural implementation of the rule would depend on who offers the new evidence. Typically, that will be the defense attorney by way of a post-conviction motion. The motion would have to satisfy two elements: it would have to disclose newly discovered evidence that could substantially change the outcome of the conviction.

However, if the exculpatory evidence was brought to the attention of the state's attorney, the prosecutor would be obliged to investigate and, if it passes muster, request that the court revest itself with jurisdiction and overturn the conviction.

Towne notes that even with the new rules, there will always be those who maintain their innocence in the face of all evidence to the contrary. The role of the prosecutor is "to be a gatekeeper between truth, justice, and the self-serving statements of the guilty," he says.

Matthew Hector
Matthew Hector is a senior associate at Sulaiman Law Group, Ltd.

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