Defense Attorneys' Perceptions of Prosecutorial Misconduct
MetadataShow full metadata
According to the National Registry of Exonerations (2015), more than 1,500 individuals have been declared factually innocent or had a criminal conviction overturned in the United States since 1989, and official misconduct by government actors, including police and prosecutors, was a contributing factor in nearly half. Prosecutorial misconduct, despite being identified as a leading cause of wrongful convictions, is believed to be largely undetected. It has been posited that most instances of prosecutorial misconduct will never be discovered (Barkow, 2010), and an accurate assessment of the prevalence of prosecutorial misconduct has not been made. Prosecutors enjoy a great deal of autonomy in their work and remain isolated from the research community. They are generally difficult to access and are reluctant to share information (Johnson, 2014). Defense attorneys work with prosecutors regularly and have a unique opportunity to become aware of acts of misconduct. This exploratory study employed a mixed-methods approach, using both qualitative interviews and self-administered surveys to determine defense attorneys’ perceptions of the prevalence and types of prosecutorial misconduct, as well as their assessments of proposed responses to misconduct. Findings indicate that defense attorneys perceive prosecutorial misconduct as a relatively frequent event that is somewhat underreported, due in part to a fear of retaliation from prosecutors and a perception that the current sanctioning process is ineffective. Selective prosecution, the failure to disclose evidence, improper conduct with informants and/or witnesses, and improper conduct at the grand jury stage were identified as the most common types of prosecutorial misconduct. Increasing sanctions, increased training, and the open files policy were identified as promising responses to prosecutorial misconduct. Findings failed to find a relationship between prosecutorial experience and perceptions of the prevalence of misconduct.