Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct

49 Pages Posted: 24 Jul 2018  

Timothy Harker

United States Attorney's Office - Eastern District of Tennessee

Date Written: July 2, 2018

Abstract

Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct—the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. The article also proffers a few explanations for the persistence of the myth that prosecutorial misconduct is endemic, discusses various problems related to the criminal justice system that are improperly attributed to prosecutors, and evaluates a few well-intentioned but misguided proposals intended to remedy prosecutorial misconduct.

Keywords: criminal law, criminal procedure, prosecutorial misconduct

JEL Classification: K14, K40, K42

Suggested Citation

Harker, Timothy, Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct (July 2, 2018). Tennessee Law Review, Vol. 85, No. 4, 2018. Available at SSRN: https://ssrn.com/abstract=3206643

Timothy Harker (Contact Author)

United States Attorney's Office - Eastern District of Tennessee ( email )

United States

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