The (Lack of) Enforcement of Prosecutor Disclosure

Criminal defense lawyers and academics have long complained of failures by prosecutors to honor their constitutional and ethical obligations to disclose exculpatory information. In recent years, such prosecutorial failures have gained the attention of a broad audience. The advent of DNA evidence has revealed and continues to reveal wrongful convictions around the country. These exonerations and the investigations that accompanied them have shown that failures by prosecutors and police to disclose exculpatory information have repeatedly contributed to wrongful convictions.

In 2007, a national spotlight shone on North Carolina prosecutor Michael Nifong’s failure to reveal that DNA testing exonerated players charged in the Duke Lacrosse team case.

In 2009, the national press gave front page treatment to another prosecutorial failure to disclose exculpatory information when Judge Emmet G. Sullivan dismissed the public corruption case against Alaska Senator Ted Stevens due to Department of Justice prosecutors’ failure to make required disclosures.

In addition to dismissing the charges, Judge Sullivan appointed a special prosecutor to investigate the prosecutors’ disclosure violations.

In a front page story in The New York Times, Neil Lewis described Judge Sullivan as delivering “a broad warning about what he said was a ‘troubling tendency’ he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases.”

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