Reading Assignments for 
Police and Prosecutorial Misconduct


    To get a sense of the issues involved, read chapter 8 in Actual Innocence and Parts 1 and 2 of Alan Berlow, The Wrong Man.

    Scheck and Neufeld report that police misconduct was a factor in 50% of the DNA exonerations and that prosecutorial misconduct was a factor in 45%.  This sounds like an astounding figure.  What type of misconduct do you believe occurs, why does it happen, and why do police and prosecutors get away with it?     

    In a 1992 article, Bennett Gershman, one of the foremost authorities on prosecutors and prosecutorial misconduct, addressed some of these issues. He noted that prosecutors have uncontrolled discretion, and this facilitates overcharging, vindictiveness, plea bargaining abuses and other violations. The New Prosecutors, 53 U. Pitt. L. Rev. 393, 407 (1992). Additionally, the prosecutor has greater access to evidence (ability to utilize the resources of the police, subpoena power through the grand jury, access to more funds for investigation, etc,) and strategic superiority (despite presumption of innocence for defendant, most jurors believe "where thereís smoke, thereís fire"; prosecutor has "presumption of good faith" based on public position), both of which enhance the prosecutorís ability to convict. Id. at 411.

    These potentials for abuse are exacerbated by the lack of control over prosecutors. Both the expansion of harmless error analysis, which "unleash[es] prosecutors from the restraining threat of appellate reversal," id. at 428, and the "demise of supervisory power," id. at 432 (which prevents the courts from taking remedial action based on perceived prosecutorial abuse even without specific authorization), serve to "encourage prosecutors to subordinate the interest in respecting the Constitution to the ever-present and always powerful interest in obtaining a conviction in a particular case." Id. at 427.

    When prosecutors engage is misconduct that leads to the admission of improper evidence, this is a particular problem with regard to the risk of wrongful conviction because there is evidence that the impact of such evidence is "inversely related to the strength of the prosecutorís case." Id. at 431:

Of course, a prosecutor who adopts the unethical norm and improperly introduces inadmissible proof or argument probably recognizes the risk of jeopardizing a conviction. When the prosecutor has a weak case, however, a subsequent reversal may be worth that risk. "Let's get the conviction now, and worry about the appeal later on," is not an uncommon attitude among some prosecutors. Thus, if winning convictions is the raison d'etre of prosecutorial work--and it is with many prosecutors--then the harmless error rule plays right into the prosecutor's hands. The prosecutor with a strong case will not be deterred from engaging in misconduct because even if his conduct is criticized by an appellate court, the conviction still will be affirmed. Similarly, the prosecutor with a weak case will feel that he has nothing to lose and everything to gain by engaging in unethical behavior.

Id. at 432. Thus, there is often very little disincentive to engage in misconduct, especially since the risk of disciplinary action is virtually non-existent in most jurisdictions.

Read (or listen to) one or more of the following:

Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L.Q. 713, 754-780 (Part III) (1999)

Q&A with Edward Humes, author of Mean Justice, a story of Innocence and Prosecutorial Misconduct.

Frontline Interview with Bennett Gershmann

Talk of the Nation (NPR) Real Audio discussion of Prosecutorial Misconduct

Chicago Tribune Series on Prosecutorial Misconduct

Harmful Error - Report from The Center for Public Integrity


    The abuses weíve seen in the cases in Actual Innocence and in The Wrong Man are particularly problematic given the supposed role of the prosecutor in our criminal justice system:

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is 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. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78 (1935). It appears clear that prosecutors too often strike not only hard blows but foul ones as well.

    One area where prosecutorial abuse has been a particular problem is nondisclosure of exculpatory evidence.  Read Kyles v. Whitley to see how these issues are addressed.