In a major step for criminal justice reform, Georgia has formally adopted Rule 3.8 of the Georgia Rules of Professional Conduct—the “special responsibilities of a prosecutor” rule. This ethical standard, modeled after the American Bar Association’s Rule 3.8, holds prosecutors to higher duties of fairness, truthfulness, and corrective action—especially when it comes to wrongful convictions and post-conviction relief. For prisoners and their advocates, Rule 3.8 opens new pathways to demand justice and accountability from the very officials charged with seeking it.
The Georgia Supreme Court adopted Rule 3.8 as part of the Georgia Rules of Professional Conduct effective January 1, 2024. The amendment was approved in late 2023 after advocacy from innocence organizations, prosecutors, and legal reform groups, aligning Georgia’s prosecutor ethics standards with the national model 1.
What Is Rule 3.8?
Rule 3.8 defines the heightened responsibilities prosecutors must uphold, including:
• Refraining from prosecuting charges unsupported by probable cause.
• Making timely disclosure to the defense of all evidence or information that negates guilt, mitigates the offense, or may reduce the sentence.
• When new, credible evidence emerges indicating a convicted person may be innocent, taking steps to investigate and, if necessary, remedy the conviction 2.
The rule mandates that prosecutors are not simply advocates for convictions—they are ministers of justice, ethically bound to help ensure that innocent people are not wrongfully imprisoned.
How Can Georgia Prisoners Use Rule 3.8?
The adoption of Rule 3.8 provides incarcerated individuals and their attorneys with a direct ethical framework to challenge prosecutors’ conduct and force a review of convictions under several scenarios:
Scenario 1: New Evidence of Innocence Emerges
Suppose a prisoner, Marcus, was convicted of armed robbery. Years later, a previously unknown eyewitness comes forward stating Marcus was not present at the crime scene. Under Rule 3.8, if the district attorney (DA) learns of this credible new evidence, the DA has an affirmative ethical obligation to investigate and, if warranted, to disclose the information to the defense and take steps to remedy the conviction—even if all appeals are exhausted. This includes notifying the court, supporting a motion for new trial, or consenting to the overturning of the conviction 3.
If the DA refuses to act, Marcus and his attorney can file a complaint with the Georgia State Bar, referencing Rule 3.8, and petition the court to compel the DA’s compliance. While the rule itself does not automatically overturn convictions, it creates a formal, enforceable standard prosecutors must follow—empowering prisoners and their advocates to demand ethical action.
Scenario 2: Prosecutorial Failure to Disclose Exculpatory Evidence
Consider Angela, convicted of murder. Years later, she discovers that before her trial, police and prosecutors possessed video footage that cast doubt on her involvement, but never disclosed it to her defense. Rule 3.8(c) and (d) now clearly require prosecutors to turn over all evidence that might exonerate a defendant—even after conviction.
Angela, or her lawyer, can file a Rule 3.8-based motion for post-conviction relief, citing the ethical breach. The court can then order a new trial, dismiss charges, or reduce the sentence. If prosecutors resist, a complaint to the State Bar can trigger an investigation and possible discipline 4.
Scenario 3: DNA or Forensic Evidence Was Ignored or Suppressed
Suppose Joseph was convicted on faulty eyewitness testimony. Years later, DNA evidence emerges excluding him as the perpetrator. Under Rule 3.8(g), if a prosecutor becomes aware of credible scientific evidence of innocence, they must promptly investigate, disclose it to the defense, and seek to remedy the wrongful conviction. This could mean agreeing to DNA testing, supporting a motion for new trial, or even moving to vacate the conviction themselves 5.
Scenario 4: Prosecutor Admits a Mistake—But the System Won’t Act
Lisa was convicted of theft. A new DA takes office and reviews her case, concluding that key evidence was likely fabricated by police. Rule 3.8(h) obligates the prosecutor to “remedy the conviction,” not just privately admit the error. Lisa’s lawyer can point to the rule in motions and public campaigns, pressuring the DA to join in supporting Lisa’s release or exoneration—and if the DA does nothing, can make the ethical breach public.
Practical Strategies for Prisoners and Advocates
1. Citing Rule 3.8 in Motions and Letters
Every motion for new trial, habeas petition, or clemency application should now explicitly reference Rule 3.8 if the case involves newly discovered evidence, undisclosed exculpatory evidence, or admissions of error by the state. Prosecutors who ignore their Rule 3.8 obligations can face discipline or public accountability.
2. Filing Bar Complaints
If a DA refuses to comply, prisoners or their advocates can file a complaint with the Georgia State Bar, documenting the violation of Rule 3.8. The Bar has the authority to investigate and discipline unethical prosecutors 6.
3. Engaging the Media and Public
Using Rule 3.8 as a hook, families and advocates can bring attention to cases where prosecutors refuse to act on new evidence of innocence—generating pressure for ethical compliance.
4. Leveraging Innocence Projects and Pro Bono Counsel
Organizations such as the Georgia Innocence Project and After Innocence have extensive experience using Rule 3.8 to reopen cases. Prisoners should reach out for help in drafting motions, requesting file reviews, or coordinating strategic campaigns 7.
The Road Ahead: Opportunities and Limitations
Rule 3.8 is not a silver bullet. Prosecutors still have discretion to decide what evidence is “credible,” and Georgia courts ultimately determine whether relief is warranted. But by enshrining these ethical duties into state law, Georgia has given prisoners a new weapon for post-conviction justice.
If Georgia’s prosecutors and courts enforce the rule with the seriousness it deserves, we will see fewer wrongful convictions, more exonerations, and greater public trust in the criminal justice system. For those unjustly incarcerated—or those who love them—Rule 3.8 means hope, accountability, and a path to the justice they were long denied.
Rule 3.8 can also be used in combination with other motions and new reforms, see our article on HB 176, A New Path to Justice: What Georgia’s HB 176 Means for Incarcerated Individuals: https://gps.press/a-new-path-to-justice-hb-176/
Related articles:
- Ga Innocence Projuct News https://www.georgiainnocenceproject.org/news/georgia-supreme-court-adopts-rule-3-8-prosecutors-ethical-duty-to-prevent-wrongful-convictions/[↩]
- see Ga Bar https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=239[↩]
- https://innocenceproject.org/news/georgia-implements-rule-3-8-prosecutors-wrongful-convictions/[↩]
- https://www.nacdl.org/Content/Rule38ProsecutorialMisconductToolkit[↩]
- https://gip.georgiainnocenceproject.org/rule38/[↩]
- https://www.gabar.org/aboutthebar/divisions/programs/professional-responsibility.cfm[↩]
- https://www.georgiainnocenceproject.org/[↩]