Government Misconduct and Convicting the Innocent: the Role of Prosecutors, Police and other Law Enforcement

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"This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989, 2,663 as of this writing. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019....

The Report is limited to misconduct by government officials that contributed to the false convictions of defendants who were later exonerated—misconduct that distorts the evidence used to determine guilt or innocence. Concretely, that means misconduct that produces unreliable, misleading or false evidence of guilt, or that conceals, distorts or undercuts true evidence of innocence."

"Justice for All": The Necessity of New Prosecutorial Accountability Measures

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"Prosecutorial misconduct is a widespread issue in the American criminal justice system today. Unethical behavior by prosecutors has been a consistent, recurring issue for decades and only continues to worsen over time. Perhaps of most concern, prosecutorial misconduct often results in the wrongful convictions of innocent people. The inequity may take on many forms, including, but not limited to, withholding exculpatory evidence, encouraging false testimony, relying on phony forensic experts, and overstating the strength of the evidence during plea negotiations."

Rampant Prosecutorial Misconduct

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.” 

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