Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them

43 Pages Posted: 29 Sep 2010

See all articles by Barry Scheck

Barry Scheck

Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin

Date Written: September 29, 2010

Abstract

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is nternal regulation of the District Attorney’s office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, and the criminal justice system as a whole, can learn important lessons from recent reforms adopted by the medical profession to improve safety. Specifically, several organizational principles and practical remedies developed by the groundbreaking National Academies of Science study on improving hospital safety, To Err Is Human, can be readily transferred to the prosecutor’s office.

The Pareto principle, a staple of quality assurance theorists, holds that eighty percent of effects result from twenty percent of causes and, therefore, quality management resources should be focused on correcting this twenty percent of causes. Recognizing there is little empirical data on the causes of Brady violations, and in accordance with Pareto’s principle, this Article conducts a “thought experiment” that postulates and then analyzes the top three causes of Brady violations: (1) The Brady material was not in the prosecutor’s file because the police did not provide it in written form to the prosecutor working on the case; (2) The Brady material was in the prosecution’s file, or known to the prosecutor from an oral communication, but the prosecution did not identify it as Brady and, therefore, did not turn it over to the defense; and (3) The prosecutor did not turn over to the defense information that he or she knew or strongly suspected could be Brady material out of fear.

What emerges from this analysis of the top three causes are concrete suggestions for setting up a Professional Integrity Program within a prosecutor’s office that can identify, correct, and prevent Brady violations. The Professional Integrity Program features the use of pre-trial and post-indictment checklists and disclosure conferences, the non-punitive tracking of errors and “near misses,” the development of clear office-wide legal definitions of Brady material, the administration of audits and root cause analysis in reversal and harmless error cases, and the creation of simulation exercises for training staff that builds on the lessons learned from “near misses” and audits. A Conviction Integrity Program to investigate plausible postconviction claims of innocence is also proposed that draws upon the ethical principles enunciated in ABA Model Rule of Professional Conduct 3.8. It also draws upon “best practices” for co-operative, non-adversarial post-conviction innocence investigations employed by projects within the Innocence Network with the Dallas District Attorney and other district attorney offices. Finally, a model and organizational chart for the implementation of a Professional and Conviction Integrity Program are presented and discussed.

Keywords: Brady, prosecutorial disclosure, prosecutorial ethics, immunity, wrongful convictions, conviction integrity program, professional integrity program

Suggested Citation

Scheck, Barry, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them (September 29, 2010). Cardozo Law Review, Vol. 31, No. 6, 2010; Cardozo Legal Studies Research Paper No. 312. Available at SSRN: https://ssrn.com/abstract=1684690

Barry Scheck (Contact Author)

Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin ( email )

40 Worth Street
New York, NY 10013
United States
212-364-5390 (Phone)

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