Prosecutors: The thin last line protecting the innocents

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INTRODUCTION Read any book or article on wrongful convictions, including research from the past quarter century of DNA exonerations, and you will reach two staggering conclusions: First, there are probably thousands of innocent felony defendants convicted each year, perhaps tens of thousands; and, second, American prosecutors sometimes fail to provide an effective last line of defense to prevent innocent defendants from standing trial. Juries are not very good at discerning innocence, either, but that is not my focus in this chapter. The threat to innocent defendants usually starts with a flawed police investigation that focuses on the wrong suspect and then builds a case based on “evidence” that confirms the preconceived notion of who is the guilty party. Bad as that is, what is worse is that some prosecutors view winning cases as more important than unmasking these fundamental police errors. Nowhere is this phenomenon more visible than in the breach of the duty to turn over evidence that might be exculpatory, a duty first recognized in Brady v. Maryland. We do not know how often prosecutors ignore Brady, but we do know that in a recent three and one-half year period, roughly 7,000 state and federal cases in the Westlaw database litigated Brady issues. And these cases arise only when the defendant somehow learns of the existence of the nondisclosed evidence. We have no way to know how many thousands or tens of thousands of cases every year involve prosecutors who failed to disclose possibly exculpatory evidence that the defendant never uncovers. We do know, thanks to the National Registry of Exonerations, that failure to turn over exculpatory evidence occurs in a significant percentage of the wrongful convictions that have been uncovered. The Registry has catalogued more than 1,700 documented DNA and non-DNA exonerations since 1989. I took a random sample of cases from the Registry, and 13 percent of the sample involved Brady violations. Prosecutorial misconduct in my study goes beyond discovery violations. In one case, the prosecutor lied to the judge in a futile attempt to cover up his violation of the court’s order not to unfairly influence witnesses before they testified. The court found that the “prosecutor engaged in a pattern of pervasive misconduct throughout the proceedings [and] … intentionally acted to prejudice the defendant to the point of the denial of a fair trial.” The Pennsylvania court dismissed the charges with prejudice.

Original languageEnglish (US)
Title of host publicationWrongful Convictions and the DNA Revolution
Subtitle of host publicationTwenty-Five Years of Freeing the Innocent
PublisherCambridge University Press
Number of pages18
ISBN (Electronic)9781316417119
ISBN (Print)9781107129962
StatePublished - Jan 1 2017
Externally publishedYes

All Science Journal Classification (ASJC) codes

  • Social Sciences(all)


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