The Supreme Court of South Carolina
Re: Amendments to Rule 3.8 of the South Carolina Rules of Professional Conduct
Appellate Case No. 2019-001491
The South Carolina Bar has proposed amending Rule 3.8 of the Rules of Professional Conduct, which are found in Rule 407 of the South Carolina Appellate Court Rules, to incorporate a modified version of amendments to the corresponding American Bar Association (ABA) Model Rule that govern a prosecutor's ethical responsibilities upon learning that a convicted defendant is likely innocent.
Pursuant to Article V, Section 4 of the South Carolina Constitution, we grant the Bar's request to amend Rule 3.8, with some modifications. The amendments, which are set forth in the attachment to this Order, are effective immediately.
s/Donald W. Beatty C.J.
s/John W. Kittredge J.
s/Kaye G. Hearn J.
s/John Cannon Few J.
s/George C. James, Jr. J.
Columbia, South Carolina
August 11, 2021
Rule 3.8, RPC, Rule 407, SCACR, is amended to add new paragraphs (g) and (h), and new comments 7 through 12, which provide as follows:
(g) When a prosecutor learns of credible, material evidence or information such that there is a reasonable probability a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) make reasonable efforts to promptly disclose in writing that evidence or information to the defendant or, if the defendant is represented by counsel, to the defendant's counsel, unless a court authorizes delay; and
(2) promptly disclose in writing that evidence or information to the chief prosecutor in the jurisdiction where the conviction was obtained.
(h) When a prosecutor knows of clear and convincing evidence or information establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall make reasonable efforts to seek to remedy the conviction.
(i) A prosecutor who concludes in good faith, measured by an objective standard, that the evidence or information is not of such nature to trigger the obligations of paragraphs (g) or (h) of this Rule does not violate those paragraphs even if the prosecutor's conclusion is later determined to have been erroneous.
. . .
 Paragraphs (g)(1) and (2) require the prosecutor who learns of the evidence or information to promptly disclose the evidence or information to the defendant and to the chief prosecutor in the jurisdiction where the conviction was obtained. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant's counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.
 When no prosecutor involved in a conviction is currently employed in a prosecutor's office at the time credible, material evidence or information indicating innocence arises, the chief prosecutor has an obligation to determine in good faith whether the evidence or information has been disclosed as required under these rules or applicable law.
 In paragraph (g), "credible" means the evidence or information must be trustworthy or capable of persuading a trier of fact.
 In paragraph (g), "material" means the evidence or information is such that there is a reasonable probability that the outcome of the trial or guilty plea would have been different had the defendant known of the evidence or information at the time of trial or guilty plea.
 In paragraph (h), "clear and convincing" means a degree of proof that produces in the mind of the prosecutor a firm belief as to the allegations sought to be established. It does not mean clear and unequivocal.
 Reasonable efforts to seek to remedy a conviction under paragraph (h) may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge the defendant did not commit the offense of which the defendant was convicted.