Prosecutorial Discretion and Post-Conviction Evidence of Innocence

52 Pages Posted: 24 Apr 2009 Last revised: 21 May 2009

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law


Traditionally, discussions of prosecutorial discretion focus on charging and plea bargaining decisions. But on occasions when new evidence casts doubt on a convicted defendant’s guilt, questions of prosecutorial discretion take on comparatively greater importance. When there is an inadequate factual basis for criminal charges, a criminal trial will often (though not invariably) act as a corrective. In contrast, the legal process holds out little hope for wrongfully convicted defendants, especially in the absence of help from prosecutors. Commentators have written about psychological reasons why prosecutors might be unduly skeptical of post-conviction challenges, have identified institutional impediments to a fair response, and have proposed structural reform. But comparatively little attention has been given to the fundamental question of what we affirmatively expect prosecutors to do when new evidence comes their way suggesting that a convicted person may be innocent. This article explores that question. It maintains that even when not required to do so by a professional conduct rule, in exercising its discretion after obtaining a conviction, a prosecutor’s office should investigate significant new evidence that suggests that the convicted defendant was innocent. When the office then concludes that the defendant was probably innocent, it should take measures, whether by supporting an application for judicial relief or by supporting a pardon application, to correct the apparent mistake. This article also explores questions regarding what investigative steps must be taken and by whom, drawing on examples of current practices both in the United States and abroad.

Keywords: post-conviction evidence, innocence, criminal investigation

Suggested Citation

Green, Bruce A. and Yaroshefsky, Ellen, Prosecutorial Discretion and Post-Conviction Evidence of Innocence. Ohio State Journal of Criminal Law, Vol. 6, No. 467, 2009, Fordham Law Legal Studies Research Paper No. 1393796, Cardozo Legal Studies Research Paper No. 264, Available at SSRN:

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

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

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5882 (Phone)

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