Neutralizing Cognitive Bias: An Invitation to Prosecutors

Abstract

With the number of criminal defendants exonerated by DNA evidence nearing the two hundred mark, and with multiple states flirting with death penalty moratoriums in part to avoid killing the innocent, we appear to stand at a milestone in our treatment of claims by criminal defendants that they have been wrongly convicted. Some have declared the dawn of a new movement to support claims of innocence. Others have gone so far to call the movement a revolution. Regardless of what we call this burgeoning movement-slash-revolution, it is increasingly attempting to fold in the prosecutors who have traditionally been depicted as part of the wrongful conviction problem, rather than its solution.

Traditionally, prosecutorial decision making has been studied through a lens of fault, blame, and intentional wrongdoing. Consistent with this lens, those who have studied the downsides of broad prosecutorial discretion have blamed bad prosecutorial decisions on overzealousness, flawed cultural and individual values, and a lack of moral courage. The collective impact of this fault-based narrative is the depiction of prosecutors as dogmatic adversaries of innocence, wholly abandoning their ethical obligations as neutral advocates of justice. In contrast, much of the narrative recently emerging from the growing innocence movement appears focused on persuading prosecutors of their importance in this new movement, not as adversaries, but as equal partners in the prevention of wrongful convictions.

My goal in this Essay is to suggest that reforms framed around a cognitive understanding of prosecutorial decision making present an opportunity for prosecutors themselves to counter the traditional fault-based narrative and to become partners in the emerging movement to prevent wrongful convictions. That goal turns out to be both modest and audacious. My goal is modest because, while some reform proposals are sweeping, controversial, and either impractical or cumbersome to initiate, the focus of this Essay will be on more moderate proposals that should be relatively uncontroversial and whose implementation rests entirely within the province of prosecutors, either as individual practices or as institutional policies. However, by focusing on modest, prosecutor-initiated reforms, the Essay flirts with the bold by throwing down a challenge to prosecutors actually to pursue these strategies. If prosecutors hold the key to moderate but meaningful reform and yet do nothing, I suggest, the innocence movement will inevitably - and justifiably - retreat from a model of cooperation and return entirely to fault-based explanations for wrongful convictions and their accompanying reforms.

Keywords: prosecutorial discretion, cognitive bias, wrongful convictions, innocence claims, bounded rationality