Stop Blaming the Prosecutors: The Real Causes of Wrongful Convictions and Rightful Exonerations

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Wrongfully convicted and rightfully exonerated criminal defendants spent an average of ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable. Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1702 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. In cases where DNA has resulted in exoneration, the most frequent causes of the underlying wrongful convictions are eyewitness misidentifications, improper forensics, false confessions, and informants. Certainly, one could argue that prosecutorial misconduct is inextricably linked to this problem because prosecutors may knowingly rely on this evidence at trial despite its unreliability. That assertion, however, ignores the fact that judges, not prosecutors, determine whether evidence should be admitted into the record and amounts to a claim that prosecutors rely on evidence and elicit testimony that they know is false. As discussed below, such a categorical claim of unethical behavior by prosecutors is not supported by the record.

Of course, even when prosecutorial misconduct is not the driving force behind wrong convictions, prosecutors can—and should—be part of a comprehensive solution that reduces the likelihood of wrongful convictions. This Article proposes the following solutions: DNA testing and functional magnetic resonance imaging (“fMRI”) should be available to defendants who demonstrate a likelihood of proving by a preponderance of the evidence that such testing could demonstrate their innocence. When DNA samples are too degraded to permit genotyping, investigators should increasingly use DNA phenotyping to create a profile of the likely perpetrator and thereby exclude certain classes of people. Appellate courts should focus on the second prong of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which permits reversal of a conviction where a district court’s decision constitutes an unreasonable application of clearly established federal law, even if the decision itself is not contrary to that law. In applying Strickland v. Washington’s ineffective assistance of counsel standard, courts should focus more heavily on whether defense counsel’s performance fell below an objectively-reasonable standard of care. The qualified immunity doctrine should be applied uniformly, and supervisory prosecutors should be vicariously liable for a deputy prosecutor’s unethical behavior. Simply put, lawmakers, courts, and prosecutors have the power and obligation to reduce the number of wrongful convictions by, among other things, ensuring a fair trial and meaningful appellate review.

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