Prosecutorial Conflicts of Interest in Post-Conviction Practice

35 Pages Posted: 26 Oct 2012 Last revised: 12 Mar 2013

Keith Swisher

University of Arizona - James E. Rogers College of Law

Date Written: 2013

Abstract

Prosecutors, our ministers of justice, do not play by the same conflict of interest rules. All other attorneys should not, and cannot, attack their prior work in transactional or litigation matters; nor should other attorneys unquestionably represent clients in matters in which the attorneys themselves face disciplinary, civil, or criminal liability. When prosecutors have likely convicted an innocent person, however, prosecutors are asked to review their own prior work objectively and then to undo it. But they understandably suffer from a conflict between their duty to justice and their duty to themselves — their duty to seek the release of the innocent person and their interest in avoiding embarrassment and liability for themselves and their offices. After this Article shows a variety of ways these conflicts cause problems, the Article demonstrates that these problems can be solved or mitigated by simply restructuring the post-conviction review process.

Keywords: model rules of professional conduct, prosecutorial ethics, wrongful convictions, conflicts of interest, model rule 3.8, duty to disclose evidence

Suggested Citation

Swisher, Keith, Prosecutorial Conflicts of Interest in Post-Conviction Practice (2013). Hofstra Law Review, Vol. 41, No. 1, page 181, 2013. Available at SSRN: https://ssrn.com/abstract=2166689

Keith Swisher (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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