25 Pages Posted: 3 Nov 2008
Date Written: 2003
A prosecutor's courtroom conduct is circumscribed by several legal and ethical constraints. A prosecuting attorney occupies two distinct but simultaneous roles in the criminal justice system - an adversarial role and a quasi-judicial role. A prosecutor in her adversarial role is the attorney for the government and may vigorously seek to convict persons charged with crimes. A prosecutor in her quasi-judicial role, however, has a different mission, namely, a constitutional and ethical duty not merely to win a conviction, but also to seek justice. The prosecutor's role as a minister of justice includes preeminently a duty to seek the truth. The duty to seek the truth derives from several sources: first, the prosecutor's obligation under due process not to use false evidence or to suppress evidence materially favorable to the defendant; second, the prosecutor's ethical obligation to have confidence in the truth of the evidence before bringing criminal charges; third, the prosecutor's virtual monopoly of the evidence and domination of the fact-finding process; and fourth, the prosecutor's unique power to affect the evaluation of the facts by the fact-finder who views the prosecutor as an expert who can be trusted to use the facts responsibly.
The following sections focus on the various ways that prosecutors misuse scientific evidence. The opportunity for misconduct is present in each of three principal stages of a trial: (1) pre-trial proceedings involving disclosure and discovery of scientific evidence, (2) questioning scientific forensic experts and introducing into evidence scientific exhibits, and (3) closing argument to the jury.
Suggested Citation: Suggested Citation
Gershman, Bennett L., Misuse of Scientific Evidence by Prosecutors (2003). Oklahoma City University Law Review, Vol. 28, 2003. Available at SSRN: https://ssrn.com/abstract=1292899