June 18, 2019

Colo. RPC 3.8 Amendments, Regarding Special Responsibilities of a Prosecutor, Go into Effect July 1

The Colorado Supreme Court last week approved changes to Colorado Rules of Professional Responsibility (Colo. RPC) 3.8 and its Comments. The amendments go into effect July 1.

Rule Change 2010(13) (pdf) adds two subsections and seven Comments to Colo. RPC 3.8, “Special Responsibilities of a Prosecutor.” The two new subsections, 3.8(g) and (h), concern procedural steps a prosecutor must undertake when “new, credible and material evidence” comes to light that could exonerate a convicted defendant of the charges against him or her:

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:
(1) disclose that evidence to an appropriate court or prosecutorial authority, and
(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority
(A) disclose the evidence to the defendant, and
(B) if the defendant is not represented, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority, of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction.

The amendments to the Rule and its Comments were approved, en banc, by the court on June 17.

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