The report offers a comprehensive examination of the problems caused by and reasons behind prosecutorial misconduct. It goes on to provide workable recommendations geared toward resolving the problems in the most beneficial yet cost effective ways.
The first recommendation involves the need for prosecutor’s offices to adopt and enforce clearly defined policies and procedures in order to create a guide for prosecutors to refer to in their decision-making processes. The manual would remove much of the arbitrary nature currently found in the exercise of discretion, and eliminate the racial and economic bias that appears in so many criminal prosecutions today.
The next recommendation regards the need for open-file discovery in criminal cases in order to insure full disclosure of all relevant evidence by the prosecutor’s office. The most common form of prosecutorial misconduct is the suppression of exculpatory evidence, and enacting laws requiring open-file discovery, with sanctions for non-compliance, would effectively end that particular type of violation.
Third, prosecutors should be required to document all agreements with witnesses and jailhouse informants. Jailhouse informants are often given incentives for their testimony in the form of reduced charges in their own case, or immunity from prosecution entirely. Such practices invite perjured testimony that current “safeguards” fail to prevent. Requiring documentation of these agreements, which would then be subject to discovery by defense counsel, would enable an accurate accounting of witness credibility by juries.
The next two recommendations are related to the need for judges to report ALL cases of prosecutorial misconduct, even if it is ruled “harmless error,” and the further need for the establishment of a specialized review board to investigate such reports and impose sanctions when necessary. Currently, all attorney misconduct is to be reported to state bar disciplinary authorities, which does little in the enforcement of prosecutorial accountability.
The final recommendation in the report, one also espoused by the ABA, calls for training programs to be established “within the prosecutor’s office for new personnel and for continuing education of the staff.” Such programs would help prosecutors and their staffs to maintain the necessary skill levels to insure they are equipped to do their jobs in an efficient and ethical manner. Since every prosecutor’s office already has a training program for its employees the issue may be what is being taught rather than the training itself. PLN has previously reported on prosecutor’s offices training their employees on how to ensure black jurors are not seated on juries while providing a “race neutral explanation” to bar appellate reversal.
The authors of this policy review did an outstanding job of providing a systematic evaluation of past and current trends in the area of prosecutorial misconduct. Also, the recommendations for improvement are well thought out and relatively cost effective. The report, The Justice Project, Improving Prosecutorial Accountability: A policy review, is available on PLN’s website.
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