Most prosecutors believe that a defendant who has been convicted is guilty and that defense counsel does little more than look for loopholes and technicalities to get their (guilty) client off, or at least, the best deal possible. I certainly did! And, typically, prosecutors proceed with this professional mind-set in good faith. The rules of professional conduct don’t require otherwise. Maybe.
Rules of Professional Conduct
Let’s look at Rule 3.8 of New York’s Rules of Professional Conduct.1 A prosecutor cannot institute or maintain a criminal charge if he “knows or it is obvious” that it is not supported by probable cause.2 But what happens when the charges were brought in good faith and the defendant is convicted, yet new evidence (or, possibly, a new mind-set) sheds a different light?
