Ethics

On July 1, 2009, Wisconsin became the first jurisdiction to adopt a version of ABA Model Rules 3.8(g)-(h), which impose new duties on prosecutors who receive evidence creating a reasonable likelihood -- or clearly establishing -- that a defendant was convicted of an offense the defendant did not commit.  Wisconsin's modifications to the ABA Model Rule are slight and do not significantly weaken it.

Importantly, the petition to adopt Rules 3.8(g)-(h) was filed by the Wisconsin District Attorney's Association.  Moreover, every entity that testified or submitted comments on the proposed rule, including the Wisconsin Department of Justice, supported the adoption of ABA Model Rules 3.8(g)-(h) or some variant on them. 

The Wisconsin Supreme Court's Order includes both a brief "Wisconsin Comment" and unaltered Comments 7-9 to ABA Model Rule 3.8.  (The Court notes that the Comments are "not adopted, but ... may be consulted for guidance in interpreting and applying the Wisconsin Rules .....")  The Court's June 17th order adopting and explaining the new provisions is here, and a legislative-style version of the Wisconsin rule (which I created), showing changes from the ABA Model, is here.