See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts

Abstract:     
Jailhouse informants and dishonest experts have long been identified as significant causes of wrongful convictions. Much has been written about the legal challenges to such testimony. However, less attention has been directed to the scope of any ethical obligations triggered by prosecutorial solicitation and presentation of the testimony of these exceedingly dubious witnesses in court, assuming full compliance with Brady, and the absence of any prosecutorial request for false testimony. Are prosecutors being willfully blind to the likelihood of perjury, or simply taking their witnesses as they find them in order to advance the cause of justice in a criminal justice system where their investigative resources are stretched thin over an ever increasing caseload?

This essay concludes that there are significant institutional goals that warrant clarification of the ethical rules governing the introduction of testimony that sounds too good to be true, regardless of the inability of defendants to obtain a reversal when the ethical breach does not violate constitutional or statutory law. My objective is not to bash prosecutors for ever resorting to jailhouse informants or questionable experts. There are likely to be instances where even under stringent prosecutorial review such witnesses appear to be truthful, and the evidence is critical, justifying prosecutors to introduce the testimony pursuant to their role as advocates, particularly given that it will still be subject to defense challenges, as well as to judicial and jury review. Rather, I hope to encourage prosecutors to give meaningful content to their ethical obligations to innocent defendants by creating standards and policies to self regulate their over-reliance on such witnesses, making their appearance at trial the exception, rather than the norm. I also suggest that prosecutors create their own self-regulatory commission under the auspices of an organization such as the National District Attorneys Association to review cases in which courts have exonerated individuals who were convicted of crimes they did not commit.

Keywords: prosecutors, ethics, wrongful convictions, jailhouse informants, experts

JEL Classifications: H19, K14, K41, K42

Accepted Paper Series