The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors

60 Pages Posted: 3 Feb 2009 Last revised: 10 Jul 2009

See all articles by Fred C. Zacharias

Fred C. Zacharias

University of San Diego School of Law

Bruce A. Green

Fordham University School of Law

Date Written: February 2, 2009

Abstract

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care to prevent the conviction of the innocent. The inquiry provides a new vehicle for thinking about the nature of the disciplinary process, the work of prosecutors, the challenge of preventing erroneous convictions and, ultimately, the complexities of prosecutorial regulation.

The Article demonstrates that it would be plausible to interpret the attorney competence rule as encompassing prosecutorial negligence and identifies various potential benefits of doing so. But the Article also identifies and analyzes significant normative and institutional objections that might be raised. The Article concludes that there are serious problems with employing the competence rule as proposed and that these problems are inherent in the use of discipline to regulate prosecutors.

This analysis suggests that the historical under-utilization of discipline in regulating prosecutors may not result exclusively from insufficient resources or a lack of will on the part of disciplinary regulators, as some have argued. The Article's illustration of the inherent limitations of the disciplinary process highlights the need for renewed attention to alternative regulatory processes. These include civil liability, which currently is foreclosed by prosecutorial immunity doctrines, and more robust internal regulation.

Keywords: innocence, wrongful convictions, false convictions, post-conviction, prosecutorial negligence, prosecutorial misconduct, Brady, false identification, cooperating witnessess, witness preparation

JEL Classification: K00, K10

Suggested Citation

Zacharias, Fred C. and Green, Bruce A., The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors (February 2, 2009). Boston University Law Review, Vol. 89, Spring 2009; San Diego Legal Studies Paper No. 09-007. Available at SSRN: https://ssrn.com/abstract=1336765

Fred C. Zacharias (Contact Author)

University of San Diego School of Law

5998 Alcala Park
San Diego, CA 92110-2492
United States

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

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