Prosecution (is) Complex

Book review of "Prosecution Complex: America's Race to Convict and Its Impact on The Innocent" by Daniel S. Medwe

Unpacking New Policing: Confessions of a Former Neighborhood District Attorney

This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of new discretion scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called communities in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of selfgovernance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author\u27s experience as a community-based prosecutor to critique the new discretion scholars\u27 reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure

Prosecutorial Agnosticism

Most legal ethicists maintain that an ethical prosecutor should pursue criminal charges against a defendant only if the prosecutor personally believes that the defendant is guilty. The assumption is that the obligation to “do justice” encompasses a duty to act as initial case-screener, scrutinizing the evidence against the defendant not just for sufficient proof to avoid a judgment of acquittal, but for proof that persuades the prosecutor of the defendant’s guilt beyond a reasonable doubt in her own mind. From this perspective, prosecutors act not simply as advocates of conviction in an adversarial system, but as a first and ever-present protector of the innocent, capable at any moment of declining or dismissing charges based on her own conclusions as a juror. Rather than resist this description, most prosecutors embrace it, priding themselves on their nearly unrivaled power to do justice through unreviewable compassion. This Article challenges the prevailing assumption and argues, both descriptively and normatively, that ethical prosecutors can be agnostic about a defendant’s guilt. As a descriptive matter, ethical prosecutors routinely pursue charges despite personal doubts about their applicability. For example, few question a prosecutor’s ability to pursue charges in the alternative, as when she is uncertain if a homicide was malicious or provoked, if an assault was purposeful or reckless, or if the value of stolen property exceeded a statutorily required amount. Similarly, ethical prosecutors pursue charges even when they carry doubts about the applicability of a defense such as self-defense or duress. Indeed, prosecutors have been able to challenge antiquated judicially-created defenses such as the year-and-a-day rule only be charging defendants who otherwise would have relied on such defenses. This Article extends the logic prosecutors invoke in such cases, allowing them to pursue charges not only when they are uncertain about legal guilt, but also when they carry doubts about factual guilt. As a normative matter, this Article argues that agnostic prosecutors might be better defenders of the innocent than those who pride themselves on their roles as supreme jurors. Whereas ethicists have emphasized the merciful power of a prosecutor who believes in a defendant’s innocence, commentators have only recently begun to explore the distorting effects of a prosecutor’s personal belief in guilt on her subsequent decision making. Drawing on the cognitive science literature, this Article argues that the protection to defendants provided by the prosecutor’s personal fact-finding function are outweighed by the adverse affects on prosecutorial neutrality once the prosecutor’s belief in guilt is formed. As an initial matter, the prosecutor’s case-screening for guilt may not be especially protective of the defendant. Because of confirmation bias, prosecutors testing a hypothesis of the defendant’s guilt may be likely to search the case evidence for proof confirming that hypothesis, to the detriment of exculpatory evidence. Once the prosecutor forms a personal belief in guilt, that belief becomes sticky as selective information processing, belief perseverance, and cognitive consistency will prevent the prosecutor from revisiting her conclusion. Tunnel vision also impairs the prosecutor’s ability to identify material, exculpatory evidence to which the defense is entitled under Brady v. [enter Abstract Body] Maryland, as selective information processing will cause the prosecutor to overestimate the strength of her case without the evidence at issue and to underestimate the evidence’s potential exculpatory value. Finally, the prosecutor’s role as a first and constant case screener may lead to cascading effects in judges, grand jurors, and petit jurors, who might be less scrutinizing for reasonable doubt because of an assumption that charges are pursued only against the guilty. In defending agnostic prosecutors, this Article argues for a transformation of our understanding of the prosecutorial function. The claim that prosecutors pursue charges only when they are personally persuaded of the defendant’s guilt is largely mythical. Being transparent about that fact might enable not only prosecutors, but also other actors in the criminal justice system, to mitigate bias in their decision making, leading to greater protection of the innocent and reducing wrongful convictions

Unpacking New Policing: Confessions of a Former Neighborhood District Attorney

This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of new discretion scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called communities in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of selfgovernance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author\u27s experience as a community-based prosecutor to critique the new discretion scholars\u27 reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure

Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake. This Article engages in the reasonableness inquiry that the Supreme Court has avoided. Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept tof “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested