The Myriad Dimensions of Prosecutorial Misconduct: A Reading Guide

This is an updated version of a previously posted list (with a slightly different title).

“Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation. Prosecutors also have tremendous control over witnesses: They can offer incentives—often highly compelling incentives—for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants. Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial. [….]

… [T]here are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police. Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it—and in most cases it will never be discovered.” — Alex Kozinski*

* “Alex Kozinski (b. July 23, 1950) is a Romanian-born American jurist and lawyer who was a judge on the U.S. Court of Appeals for the Ninth Circuit from 1985 to 2017. He was a prominent and influential judge, and many of his law clerks went on to clerk for the U.S. Supreme Court. Kozinski’s judicial career ended in 2017 when he abruptly retired after over a dozen former female law clerks and legal staffers accused him of sexual harassment and abusive practices.” Kozinski’s improper (unethical if not illegal) behavior does not in any way detract from the truth of his description of the “tremendous power” of prosecutors in the U.S. and concern with the ongoing and apparently intractable problem of prosecutorial misconduct.

[Readers may also be interested in the bibliographies for “criminal law” as well as “punishment and prison” (the latter with a short list on policing) found on my Academia page.]

Some of the literature here falls within the ambit of criminal defense, defense counsel and public defenders in particular. It is included because of my belief that international criminal law’s procedural principle of “equality of arms” now enshrined in international and regional human rights instruments should be adopted by all municipal (or domestic) systems of criminal justice (as integral to criminal law policy and procedure). This literature amply documents and thus testifies to the need for such a procedural principle for criminal law and justice in the U.S.

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• Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
• Balko, Randy (August 5, 2013) “The Untouchables: America’s Misbehaving Prosecutors and the System that Protects Them,” Huffington Post.
• “Brady’s Mandate,” The New York Times, Nov, 12, 2011.
• Burns, Sarah (2011) The Central Park Five. New York: Alfred A. Knopf.
• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
• Christianson, Scott (2006) Innocent: Inside Wrongful Conviction Cases. New York: New York University Press.
• Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
• “Criminal Law 2.0 – Preface” [to the 44th Annual Review of Criminal Procedure], by Hon. Alex Kozinski, Georgetown Law Journal, Vol. 103 – 5: iii-xliv. Available: http://georgetownlawjournal.org/articles/criminal-law-2-0-preface-to-the-44th-annual-review-of-criminal-procedure/
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Equal Justice Initiative: “Founded in 1989 by Bryan Stevenson, a widely acclaimed public interest lawyer and bestselling author of Just Mercy, EJI is a private, 501(c)(3) nonprofit organization that provides legal representation to people who have been illegally convicted, unfairly sentenced, or abused in state jails and prisons. We challenge the death penalty and excessive punishment and we provide re-entry assistance to formerly incarcerated people. EJI works with communities that have been marginalized by poverty and discouraged by unequal treatment. We are committed to changing the narrative about race in America. EJI produces groundbreaking reports, an award-winning wall calendar, and short films that explore our nation’s history of racial injustice, and we recently launched an ambitious national effort to create new spaces, markers, and memorials that address the legacy of slavery, lynching, and racial segregation, which shapes many issues today.”
• Freedman, Monroe H. “An Ethical Manifesto for Public Defenders,” 39 Valparaiso University Law Review, 911 (2005). Available: http://scholar.valpo.edu/vulr/vol39/iss4/4
• Freedman, Monroe H. “The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices” (February 26, 2012). Washburn Law Journal, 2012; Hofstra University Legal Studies Research Paper No. 12-06. Available: http://ssrn.com/abstract=2017178
• Freedman, Monroe and Abbe Smith (2010) Lawyers’ Ethics. Matthew Bender & Co./LexisNexis.
• Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
• Garrett, Brandon L. “Why Plea Bargains Are Not Confessions,” 57 William & Mary Law Review, 1415 (2016). Available: https://scholarship.law.wm.edu/wmlr/vol57/iss4/10
• Gershman, Bennett L. (2013-14 ed.) Prosecutorial Misconduct. New York: Clark Boardman Callaghan/West Group.
• Green, Bruce A. “Prosecutors and Professional Regulation” (November 15, 2012). Georgetown Journal of Legal Ethics, Vol. 25, p. 873, 2012; Fordham Law Legal Studies Research Paper No. 2176252. Available: http://ssrn.com/abstract=2176252
• Green, Bruce A. and Yaroshefsky, Ellen. “Prosecutorial Discretion and Post-Conviction Evidence of Innocence,” Ohio State Journal of Criminal Law, Vol. 6, No. 467 (2009); Fordham Law Legal Studies Research Paper No. 1393796; Cardozo Legal Studies Research Paper No. 264. Available: http://ssrn.com/abstract=1393796
• Henning, Peter J. “Prosecutorial Misconduct and Constitutional Remedies,” 77 Wash. U. L. Q. 713 (1999). Available: http://openscholarship.wustl.edu/law_lawreview/vol77/iss3/2
• Houppert, Karen (2013) Chasing Gideon: The Elusive Quest for Poor People’s Justice. New York: The New Press.
• Innocence Project: Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson.
• The Justice Project. “Improving Prosecutorial Accountability: A Policy Review.” (2009) Available online as a PDF doc. via a Google search. This paper has an indispensable list of books and (especially) articles under “suggested reading.”
• Kennedy, Randall (1997) Race, Crime, and the Law. New York: Pantheon Books.
• Lawless, Joseph F. (3rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
• Lippke, Richard L. (2011) The Ethics of Plea Bargaining. Oxford, UK: Oxford University Press.
• Lithwick, Dahlia. “You’re All Out”: A defense attorney uncovers a brazen scheme to manipulate evidence, and prosecutors and police finally get caught. Slate, May 28, 2015.
• Mayeux, Sara (2020) Free Justice: A History of the Public Defender in the Twentieth-Century America. Chapel Hill, NC: University of North Carolina Press.
• Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
• The Open File: A website about prosecutorial misconduct & accountability
• Perlin, Michael L., “‘Power and Greed and the Corruptible Seed’: Mental Disability, Prosecutorial Misconduct, and the Death Penalty” (November 10, 2014). NYLS Legal Studies Research Paper. Available: http://ssrn.com/abstract=2522444
• Prosecutorial Misconduct: Wikipedia article.
• Rakoff, Jed S. “Why Innocent People Plead Guilty,” The New York Review of Books, November 20, 2014 (Vol. 61, No. 18).
• Raphling, John. “Plead guilty, go home. Plead not guilty, stay in jail,” Los Angeles Times, May 17, 2017.
• Rapping, Jonathan (2020) Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice. Boston, MA: Beacon Press.
• Rhode, Deborah L. (2004) Access to Justice. New York: Oxford University Press.
• Ridolfi, Kathleen M. and Possley, Maurice Possley; Northern California Innocence Project, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009” (2010). Northern California Innocence Project Publications. Book 2, http://digitalcommons.law.scu.edu/ncippubs/2
• “The Rockford Files”: Season 3, Episode 7: So Help Me God (19 Nov. 1976) “Jim gets called before a grand jury where he promptly gets thrown into jail for contempt.”
• Scheck, Barry, Peter Neufeld and Jim Dwyer (2000) Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Doubleday.
• Scheck, Barry, Peter Neufeld, and Jim Dwyer (2001) Actual Innocence: When Justice Goes Wrong and How to Fix It. New York: Signet.
• Schehr, Robert, “The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining” (June 1, 2015). Available: http://ssrn.com/abstract=2636501
• Smith, Abbe and Monroe H. Freedman, eds. (2013) How Can You Represent Those People? New York: Palgrave Macmillan.
• Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.
• Turner, Jenia I. “Plea Bargaining and International Criminal Justice,” 48 University of the Pacific Law Review, 219 (2017). Available: https://scholarlycommons.pacific.edu/uoplawreview/vol48/iss2/11
• “We need reforms to increase confidence in the justice system,” The Times-Picayune, 29, 2012.
• “When Innocent Clients Plead Guilty,” a blog post by yours truly at Ratio Juris.
• Yaroshefsky, Ellen. “New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson” (November 16, 2012). Georgetown Journal of Legal Ethics, Vol. 25, No. 913 (2012). Available: http://ssrn.com/abstract=2176986

The reading guide is available as a pdf doc. here.