Group 12: Criminal Law: State Power and Conduct
Fairness Undermined: Why Courts Must Stop Letting Strong Evidence Excuse Prosecutorial Misconduct
Jennifer Brinkman, Northern Kentucky
Prosecutorial misconduct has long plagued the criminal justice system in America. There is little agreement on how best to stymie the improper actions of prosecutors, and little progress has been made. Most scholarly focus, however, has been on punitive measures imposed on prosecutors and not on the effect of the misconduct on criminal defendants. This article asserts that current federal and state court jurisprudence place too much emphasis on the strength of the evidence against the defendant to justify upholding convictions despite improper and unethical conduct by prosecutors. By doing so, courts sit idly by while defendants’ right to a fair trial is trampled upon by prosecutors who fail to abide by their high ethical obligations. Courts should, instead, place more focus on the egregiousness of the prosecutor’s actions and less on the strength of the evidence against the accused in determining whether a conviction should be overturned.
The Impact of External Review on Prosecutorial Misconduct
Sarah Gottlieb, Washington and Lee
Prosecutorial misconduct is a leading cause of wrongful convictions. The withholding of exculpatory evidence has occurred in over half of all recorded exonerations since 1989. The main mechanism to address this problem, internal self-policing by prosecutors’ offices, is problematic and plagued by bias. Conviction Integrity Units tasked with the job of identifying and addressing past instances of misconduct are failing to ameliorate harm caused by past prosecutorial misconduct or prevent it from occurring in the future. But what happens when this internal review is undertaken instead by an external entity?
This article aims to answer that question by conducting a critical analysis of this alternative to prosecutorial self-policing and assessing the reviews of prosecutorial misconduct by externally appointed prosecutors and external conviction review units, including the North Carolina Innocence Commission and the Conviction Integrity Units housed in Attorney Generals' offices in Connecticut, Delaware, Massachusetts, Michigan, Minnesota, New Jersey, and Pennsylvania. It will thoroughly evaluate what occurs when documented prosecutorial misconduct is unearthed by these external units, determining whether external actions properly address this ongoing problem. Through such analysis, this article aims to answer the question of whether external policing of official misconduct sufficiently addresses ethical violations of the past, attempts to remedy those that may occur in the future, or suffers from the same flaws inherent in prosecutorial self-policing.
Discussant: Eve Hanan, UNLV