Haw. R. Prof. Cond. 3.8

As amended through September 30, 2024

Rule 3.8 - Performing the Duty of Public Prosecutor or Other Government Lawyer

A public prosecutor or other government lawyer shall:

(a) not institute or cause to be instituted criminal charges when the prosecutor or government lawyer knows or it is obvious that the charges are not supported by probable cause; and

(b) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

(c) 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 State of Hawai'i, promptly disclose that evidence to the defendant and the office of the public defender, unless a court orders otherwise.

(d) A prosecutor'sindependent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of section (c), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

Haw. R. Prof. Cond. 3.8

Amended October 21, 2013, effective 1/1/2014.

COMMENTS:

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the convictions of innocent persons. The extent of mandated remedial action is a matter of debate. See, e.g., ABA Standards of Criminal Justice Relating to Prosecution Function. Competent representation may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. See also Rule 3.3(d) of these Rules, governing ex parte proceedings. Applicable law may require other measures by the prosecutor. Knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4 of these Rules.

[2] The exception in paragraph (b) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

[3] "Defense" as used in paragraph (b) refers to a defense lawyer or a defendant if unrepresented.

[4] See Rule 3.6(d) of these Rules for restrictions on extrajudicial statements by investigators and other persons employed by lawyers in criminal cases.

[5] With respect to paragraph (c), consistent with the objectives of Rules 4.2 and 4.3 of these Rules, disclosure to a represented defendant must be made through the defendant's counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.