In a criminal case it is widely known that the prosecution can’t hide exculpatory evidence from a defendant and his attorney. This means that they must turn over all evidence that could help a defendant in his case. It is a crucial law that defense attorneys rely on and fight to enforce as they represent clients facing criminal charges, whether it is a simple battery case, a DUI or even murder. You must be able to obtain the evidence the prosecution has during a criminal proceeding in order to ascertain all facts and provide the best defense possible.
A caveat of this rule is that the requirement is for the prosecution to turn over such exculpatory evidence while a criminal case is proceeding. But now, a proposal for an amendment to Illinois Supreme Court Rule of Professional Conduct 3.8 is being considered and it would seek to require prosecutors to turn over post-conviction exculpatory evidence that could prove a defendant did not commit the crime even after the case is over.
Under the considered amendment, in addition to simply turning over the exculpatory evidence, if a prosecutor who finds the evidence is working in the county of the defendant’s conviction, then he or she would also have to conduct a further and reasonable investigation into the new evidence. Then, if the new evidence makes it clear the individual did not commit the crime, that prosecutor would also be ethically required under the Rule to attempt to remedy the conviction.
These changes could be dramatically important to many criminal defendants in the state of Illinois. In an age where years after a criminal case has ended, resulting in a conviction, and evidence is turning up that helps to overturn the conviction, it is still only after the defendant, his family and his attorneys have fought to find that evidence and often many years later. Making it mandatory for a prosecutor to turn over such evidence could help many individuals who would not otherwise have the resources to search for and fight for access to exculpatory evidence post-conviction.
Such an important amendment to the Illinois Supreme Court Rule of Professional Conduct could be a game-changer for future cases, both during the initial criminal proceeding and after. It could offer a glimmer of hope to many when before there was none. However, this is only being considered right now, but should it be enacted, could be a real victory for many.