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For prosecutors and the public alike, a prosecutorial victory is commonly perceived as “getting the bad guy” and “putting him behind bars.” However, as an administrator of justice, the true duty of a prosecutor is to ensure that the truth is protected and disclosed, not merely to win a case.

According to Professor and Vice Dean Peter Joy, who is co-director of the Criminal Justice Clinic at Washington University School of Law, this desire to win combined with the lack of specific ethics rules guiding the work of prosecutors result in prosecutorial misconduct and ultimately, wrongful convictions.

While wrongful conviction has been attributed to a variety of factors, such as eyewitness misidentification, prosecutorial misconduct occurs at an alarming rate. According to a study mentioned in Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted by Barry Scheck, Peter Neufeld and Jim Dwyer, of the first sixty-two people exonerated by DNA evidence, twenty-six cases involved some degree of prosecutorial misconduct. An Innocence Project study revealed that among seventy exonerees, thirty-four cases—nearly fifty percent—involved some degree of prosecutorial misconduct. The nature of the prosecutorial misconduct included suppressing exculpatory evidence, knowingly using false testimony, fabricating evidence, coercing witnesses, making false statements to the jury, and engaging in improper closing arguments.

In the article, “The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System,” Prof. Joy identifies three institutional conditions which facilitate prosecutorial misconduct: “vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutorial misconduct.” Together, these three conditions create an atmosphere of uncertain norms and a lack of accountability for prosecutors as they carry out their duties.

Without official safeguards against prosecutorial misconduct, a prosecutor is left to go about his or her work—which is often a sensitive balancing act—according to his or her own will and plans. This balancing act is comprised of the prosecutor’s role as “in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer,” as defined by the Supreme Court. Thus, while a prosecutor is a minister of justice, he or she must also be seeking justice. In seeking justice, the prosecutor must maintain an almost neutral stance to ensure that the defendant is secured procedural justice and that guilt is decided upon sufficient evidence.

To help keep prosecutors accountable, Prof. Joy suggests that prosecutors’ offices create a manual of specifically delineated ethics rules that would also be accessible to the public. The ABA Prosecution Function Standards provide examples of norms that should be enforced, such as that a prosecutor shall not “knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.” Instead, prosecutors should be required to provide a “timely disclosure…of all [such] evidence or information…which would tend to reduce the punishment of the accused.” According to Prof. Joy, these rules would prohibit two prosecutorial practices that have led to wrongful conviction: withholding exculpatory evidence until the eve of trial, or even during trial, when the defense has too little time to process the evidence; and neglecting to follow investigatory leads that may exonerate the accused. Furthermore, a concrete set of rules would foster a “culture of integrity” in prosecutorial offices, as defined by “clearly understood and implemented policies and rules.”

Secondly, regarding the use of informants, Prof. Joy recommends that prosecutors be required to file a pretrial notice to help prevent abuses, such as the granting of rewards for favorable testimony. These filings would thoroughly describe the extent of contact with the informant and state the inducements given to the informant for the testimony.

Thirdly, prosecutors’ offices should not only establish specific ethical guidelines, but also implement a system of graduated discipline each time there is a finding of prosecutorial misconduct. Bar disciplinary authorities would then review reports of misconduct and conduct investigations or administer discipline if deemed appropriate. According to Prof. Joy, these internal and external controls on the conduct of prosecutors are necessary to ensure that they respect and adhere to these prosecutorial ethics.

To make this issue of addressing and correcting prosecutorial misconduct a priority will enhance public faith in the American legal system, create a fairer and more efficient criminal justice system, and most importantly—save the lives of the innocent. A hurdle must first be overcome, however, as this proposal raises the question: Are prosecutors willing to be monitored and led by what, to some, could be perceived as “restrictive” rules? Would they place justice and truth above their own methods, preferences, and personal goals? An optimistic reply would be yes. However, the cries of the innocent behind bars suggest that the answer for many prosecutors have been and will be “no.” It is time for lawyers to reevaluate the true purpose and motivation of their work: To win, or to lose—so that an innocent person may keep his life.

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