Do Two Wrongs Protect a Prosecutor?

5 Pages Posted: 16 Mar 2011

See all articles by Peter A. Joy

Peter A. Joy

Washington University in St. Louis - School of Law

Kevin C. McMunigal

Case Western Reserve University School of Law

Date Written: December 4, 2009


May a former criminal defendant bring a civil rights action against a prosecutor who fabricated evidence during an investigation and then introduced that evidence against the defendant at trial? The Seventh and Second Circuits have divided in answering this question. On November 4, 2009, the Supreme Court heard oral argument in an Eighth Circuit case raising this question, Pottawattamie County v. Harrington, 547 F.3d 922 (8th Cir. 2008), cert. granted, 129 S. Ct. 2002 (April 20, 2009), and many expected the Court to resolve the circuit split later this term. But on January 4, 2010, the Court dismissed the case and the lawyers announced a $12 million settlement.

This columns urges federal courts to recognize the analysis of the Second Circuit. The prosecutor who intentionally fabricates evidence in the investigative stage is clearly blameworthy and dangerous. If that prosecutor then knowingly uses that fabricated evidence to indict and convict a defendant, the prosecutor commits additional blameworthy and dangerous acts. Prosecutors argue every day at sentencings throughout the country that repeated criminal acts are more deserving of punishment and show greater need for deterrence than isolated crimes. Similarly, the use of fabricated evidence in cases such as Pottawattamie County aggravates the prosecutor’s blameworthiness and danger, increasing both the retributive and deterrent justifications for imposing monetary liability.

Suggested Citation

Joy, Peter A. and McMunigal, Kevin C., Do Two Wrongs Protect a Prosecutor? (December 4, 2009). Criminal Justice, Vol. 25, No. 1, Spring 2010; Washington University in St. Louis Legal Studies Research Paper No. 10-04-05. Available at SSRN:

Peter A. Joy (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

Kevin C. McMunigal

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
2163683613 (Phone)
2163682086 (Fax)

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