ER 3.10 Credible and Material Exculpatory Information about a Convicted Person

The Standard

Prosecutors and all lawyers share a fundamental obligation to prevent and rectify wrongful convictions, though the scope of their duties differs.

Prosecutors serve as ministers of justice, not mere advocates. Beyond the trial obligations to prosecute only charges supported by probable cause and to make timely disclosure of all exculpatory and mitigating evidence ("Brady material"), prosecutors have continuing post-conviction duties. When a prosecutor learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant is actually innocent, the prosecutor must promptly disclose that evidence and investigate. If the evidence is clear and convincing, the prosecutor must take steps to set aside the conviction.

All other lawyers have a parallel duty under ER 3.10. When any lawyer knows of credible and material evidence creating a reasonable likelihood that a convicted person is innocent, the lawyer must promptly disclose to the court, prosecutorial authority, and defendant's counsel.

FAQs

Does ER 3.10 apply to all lawyers or just prosecutors?

ER 3.10 applies to all lawyers except prosecutors (who have special duties under ER 3.8(g) and (h)). This means defense attorneys, civil lawyers, in-house counsel, and lawyers in any practice area have obligations under ER 3.10.

If I'm a defense attorney and overhear someone bragging about committing a crime for which another person was convicted, do I have an ER 3.10 obligation?

Yes, if the evidence is credible, material, and creates a reasonable likelihood the convicted defendant didn't commit the offense. But limitations apply:

Don't disclose if protected by ER 1.6 (confidentiality) or other law.
Don't disclose if you know appropriate authorities or the convicted defendant already possess the information.
If you conclude in good faith that information isn't subject to ER 3.10, you don't violate the rule even if that is later determined erroneous.

Bottom line: Carefully evaluate whether the statements are sufficiently credible and material, and whether disclosure would violate confidentiality.

What does "credible and material" mean in ER 3.10?

Credible means believable and worthy of confidence (need not be ironclad)
Material means bears significantly on guilt or innocence

The evidence must create "reasonable likelihood" that convicted defendant didn't commit offense—a probability standard, not mere possibility, but doesn't require absolute certainty. Lawyers must exercise professional judgment in good faith.

I represented a client whose conviction I now think was wrongful; what do I do?

If you learn of credible and material evidence creating a reasonable likelihood your former client didn't commit the offense:

Consult with former client about the new evidence and your ethical obligations
If the client and appropriate authorities don't already have the information, promptly disclose to the court where convicted, the prosecutorial authority, and defendant's current counsel (or defendant if unrepresented)

Your ER 1.6 confidentiality duty continues, but ER 3.10 creates a limited exception for this type of disclosure to prevent wrongful convictions.

What if I'm uncertain whether new evidence requires disclosure under ER 3.10?

ER 3.10(c): A lawyer who in good faith concludes information isn't subject to the rule doesn't violate the rule even if that conclusion is later determined erroneous. This protects reasonable, good faith judgments. However, if in doubt, err on the side of disclosure. The rule prevents incarceration of innocent persons—a core value of the judicial system and vital concern to the legal profession.

This page is managed by Patricia Seguin

ER 3.10 Credible and Material Exculpatory Information about a Convicted Person

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