CC313 -- Prosecutorial & Judicial Misconduct

Prosecutorial Misconduct

• Contributory factor in key wrongful conviction cases in Canada and US

• Individual and Systemic levels

Role of Prosecutors in the Criminal Justice System

• Powerful and unique role

• Charging decisions

  • Who to charge

  • What charges to bring

  • When to bring charges

• Plea bargain

  • Decides whether to offer a plea bargain

• Grand jury proceedings -- US

  • Decides which witness will be called

  • Directs questioning of those witnesses

  • Interprets the law

  • Makes a recommendation to the grand jury

Dual Role of Prosecutors in the Criminal Justice System

• Minister of Justice

  • Ensure fairness, disclosure, and impartiality

  • Protects rights

• Zealous Advocate

  • Passionate argument, effective case presentation

  • Seeks conviction ethically

Reasons for Dual Role

• Obligation as ministers of justice limits the abuse of power and offsets the imbalance of resources that disadvantages the defence in the criminal process

• The more significant the burden of responsibility inspires trust in the accuracy and legitimacy of the criminal justice system

• Conferring prosecutors with the title of ministers of justice engenders the belief that justice will prevail in criminal proceedings

Stages and Forms -- Pre-Trial Charging

• Selective prosecution

• Malicious or retaliatory prosecution

• Withholding exculpatory evidence

• Prosecuting without sufficient evidence

*Grand Jury Process -- Secretive nature of grand jury proceedings provides a fertile ground for abuse of prosecutorial duty*

Stages and Froms -- Pre-Trial Plea Bragaining

• Account for most criminal convictions in US and other jurisdictions

• Frequency and nature of the deals have led to serious concerns about administration of justice and presumption of innocence

• Hurriedly negotiated plea deals without much oversight from swamped judges could commodify justice and threaten judicial integrity

  • Withhold exculpatory evidence from defendants

  • Reach a deal without participation of defence counsel

  • Entice defendants with lesser charges in exchange for plea deal

Stages and Forms -- Trial

• Conceal exculpatory evidence

  • Suppress mistaken eyewitness identification

  • Conceal fraudulent and erroneous forensic evidence that they knew would exonerate defendants but still allow their conviction

  • Suppress evidence that could impeach prosecution witness

  • Conceal statements of witnesses that contradict the testimony of the witnesses at trial or evidence eliciting false testimony from witnesses in exchange for incentives

• Present false testimony

• Make improper statements

• Permit state witness to lie during the trial

Prosecutor’s Dilemma -- Divided Loyalties

• Prosecutors serve a dual role

• The duty to act as a zealous advocate and the duty to act as a minister of justice are separate duties -- Some tension between them seems inevitable

• Prosecutors are expected to be neutral, independent ministers of justice, they face intense pressure to procure convictions

Psychological Level

• Cognitive Biases:

  • Confirmatory bias

  • Selective information processing

  • Belief perseverance

• Cognitive Dissonance:

  • Difficult to admit mistakes

  • Difficult for a prosecutor to accept that their actions have led to the conviction of an innocent person

  • May be easier to deny the possibility

Institutional Level

• Prosecutor works within a particular institutional environment with explicit procedures and institutional expectations

• Desire to maintain reputation of institution

• Prosecutors start to internalize the emphasis placed on conviction rates

• Prosecutor’s consideration of the actual people they work with:

  • Victims and families who depend on them

  • Police officers they depend on

  • Colleagues they work closely with

  • Supervisor whose opinion they seek

• Develop empathy and build loyalties that are bound to affect their conception of justice

• No relationship with defendants -- Us vs. Them mindset

Role of the Adversarial System

• If each adversary acts zealously on behalf of their client, the truth will come out

  • Defence attorney’s only duty is to act zealously

  • Prosecutor has dual duties

• Prosecutor sees clients as victims -- Want to win to vindicate the interests of client, also to win on an individual level

• Common for prosecutors to point to a jury verdict or ruling as evidence that the right person was convicted

• Adversarial system makes it more likely for prosecutors to focus on convictions over jusitce

Judges and Wrongful Convictions

• Judges rarely detect factual innocence in appeals

• Harmless error and defence to jury verdicts uphold wrongful convictions

• Lack of engagement with scientific evidence

• Courts prioritize finality over factual accuracy -- Reluctant to reopen closed cases

• Gatekeeping failure -- Judges admit unreliable evidence

Proposed Reforms -- Proseuctors

• Provide bias-awareness and ethics training

• Change prosecutorial culture from winning to truth-seeking

• Emphasize the prosecutors role as a minister of justice

• Redefine success metrics to reward fairness and integrity

• Establish conviction integrity units

• Create external oversight and disciplinary review mechanisms

• Encourage accountability and transparency in addressing errors

Proposed Reforms -- Judges

• Strengthen judicial gatekeeping of unreliable evidence

• Provide judicial training on cognitive bias and forensic reliability

• Reduce automatic deference to jury verdicts

• Expand access to post-conviction and innocence reviews

• Collect and publish data on wrongful convictions

• Encourage judicial openness and acknowledgment of systemic error