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Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution

33 Pages Posted: 10 Apr 2016 Last revised: 16 Aug 2017

Harry M. Caldwell

Pepperdine University - School of Law

Date Written: 2016

Abstract

Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity. They suffer no disciplinary repercussions for their misdeeds. The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct. Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.

In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and mete out discipline should the claims be warranted. As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.

The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others. The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.

Keywords: prosecutorial misconduct, prosecutors, discipline, Prosecutorial Review Panel

Suggested Citation

Caldwell, Harry M., Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution (2016). 2017 U. Ill. L. Rev. 1455 (2017); Pepperdine University Legal Studies Research Paper No. 10. Available at SSRN: https://ssrn.com/abstract=2761252

Harry M. Caldwell (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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