Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-27T12:43:20.093Z Has data issue: false hasContentIssue false
  • English
  • Français

Prosecutor Risk, Maturation, and Wrongful Conviction Practice

Published online by Cambridge University Press:  27 December 2018

Kay L. Levine  and
Ronald F. Wright
Get access Rights & Permissions [Opens in a new window]

Abstract

In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession. Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.

Type
Articles
Information
Law & Social Inquiry , Volume 42 , Issue 3 , Summer 2017 , pp. 648 - 676
Copyright
Copyright © American Bar Foundation, 2017 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Aviram, Hadar. 2013. Legally Blind: Hyperadversarialism, Brady Violations, and the Prosecutorial Organizational Culture. St. John's Law Review 87:1–46.Google Scholar
Bach, Amy. 2009. Ordinary Injustice: How America Holds Court. New York: Metropolitan Books.Google Scholar
Baer, Miriam. 2015. Timing Brady . Columbia Law Review 115:1–67.Google Scholar
Bandes, Susan. 2005. Loyalty to One's Convictions: The Prosecutor and Tunnel Vision. Howard Law Journal 49:475–04.Google Scholar
Bandes, Susan. 2008. Framing Wrongful Convictions. Utah Law Review 2008:5–24.Google Scholar
Baron, J., and Hershey, J. C. 1988. Outcome Bias in Decision Evaluation. Journal of Personality and Social Psychology 54:569–79.Google Scholar
Beichner, Dawn, and Spohn, Cassia. 2005. Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit. Criminal Justice Policy Review 16:461–98.Google Scholar
Berman, Paul. 1974. Revolutionary Organization. Lexington, MA: Lexington Books.Google Scholar
Bibas, Stephanos. 2009. Prosecutorial Regulation Versus Prosecutorial Accountability. University of Pennsylvania Law Review 157:959–1016.Google Scholar
Boehm, Dana Carver. 2014. The New Prosecutor's Dilemma: Prosecutorial Ethics and the Evaluation of Actual Innocence. Utah Law Review 2014:613–75.Google Scholar
Bowers, Josh. 2008. Punishing the Innocent. University of Pennsylvania Law Review 156:1117–79.Google Scholar
Burke, Alafair. 2007a. Neutralizing Cognitive Bias: An Invitation to Prosecutors. NYU Journal of Law and Liberty 2:512–30.Google Scholar
Burke, Alafair. 2007b. Prosecutorial Passion, Cognitive Bias, and Plea Bargaining. Marquette Law Review 91:183–211.Google Scholar
Cain, Maureen. 1973. Society and the Policeman's Role. London: Routledge and Kegan Paul.Google Scholar
Covey, Russell. 2009. Signaling and Plea Bargaining's Innocence Problem. Washington and Lee Law Review 66:73–130.Google Scholar
Cummings, Lawton P. 2010. Can an Ethical Person be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform. Cardozo Law Review 31:2139–59.Google Scholar
De Fruyt, Filip, Bartels, Meike, Van Leeuwen, Karla G., De Clerq, Barbara, Decuyper, Mieke, and Mervielde, Ivan. 2006. Five Types of Personality Continuity in Childhood and Adolescence. Journal of Personality and Social Psychology 91:538–52.Google Scholar
Felkenes, George T. 1975. The Prosecutor: A Look at Reality. Southwestern University Law Review 7:98–123.Google Scholar
Findley, Keith A. [2011] 2012. Adversarial Inquisitions: Rethinking the Search for the Truth. New York Law School Law Review 56:911–41.Google Scholar
Findley, Keith A., and Scott, Michael S. 2006. The Multiple Dimensions of Tunnel Vision in Criminal Cases. Wisconsin Law Review 2006:291–397.Google Scholar
Flemming, Roy B., Nardulli, Peter F., and Eisenstein, James. 1992. The Craft of Justice: Politics and Work in Criminal Court Communities. Philadelphia, PA: University of Pennsylvania Press.Google Scholar
Frederick, Bruce, and Stemen, Don. 2012. The Anatomy of Discretion: An Analysis of Prosecutorial Decisionmaking—Technical Report. Washington, DC: National Institute of Justice.Google Scholar
Garrett, Brandon. 2011. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.Google Scholar
Gershman, Bennett L. 2001. The Prosecutor's Duty to Truth. Georgetown Journal of Legal Ethics 14:309–54.Google Scholar
Gershowitz, Adam. 2014. An NTSB for Capital Punishment. Texas Tech Law Review 47:151–77.Google Scholar
Gould, Jon B., Carrano, Julia, Leo, Richard A., and Hail‐Jares, Katie. 2014. Predicting Erroneous Convictions. Iowa Law Review 99:471–517.Google Scholar
Hampton, Sarah, and Goldberg, Lewis. 2006. A First Large Cohort Study of Personality Trait Stability Over the 40 Years between Elementary School and Midlife. Journal of Personality and Social Psychology 91:763–79.Google Scholar
Harley, Erin M., Carlsen, Keri A., and Loftus, Geoffrey R. 2004. The “Saw‐it‐All‐Along” Effect: Demonstrations of Visual Hindsight Bias. Journal of Experimental Psychology: Learning, Memory, and Cognition 30:960–68.Google Scholar
Heumann, Milton. 1977. Plea Bargaining: The Experiences of Prosecutors, Judges and Defense Attorneys. Chicago, IL: University of Chicago Press.Google Scholar
Hodgson, James. 2001 . Policing Sexual Violence: A Case Study of John Doe v. The Metropolitan Toronto Police , in Sexual Violence: Policies, Practices and Challenges in the United States and Canada, ed. Hodgson, James F. and Kelley, Debra S., 173–89. Westport, CT: Praeger.Google Scholar
Hollway, John. 2014. A Systems Approach to Error Reduction in Criminal Justice. Quattrone Center for the Fair Administration of Justice, University of Pennsylvania. http://ssrn.com/abstract=2409234 (accessed May 31, 2016).Google Scholar
Ibarra, Herminia. 1999. Provisional Selves: Experimenting with Image and Identity in Professional Adaptation. Administrative Science Quarterly 44:764–91.Google Scholar
Johnson, David T. 1998. The Organization of Prosecution and the Possibility of Order. Law & Society Review 32:247–308.Google Scholar
Johnson, David T. 2001. The Japanese Way of Justice. Oxford: Oxford University Press.Google Scholar
Kassin, Saul M., Dror, Itiel E., and Kukucka, Jeff. 2013. The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions. Journal of Applied Research in Memory and Cognition 2:42–52.Google Scholar
Katz, Jack. 1978. Lawyers for the Poor in Transition: Involvement, Reform, and the Turnover Problem in the Legal Services Program. Law & Society Review 12:275–300.Google Scholar
King, John D. 2013. Beyond Life and Liberty: The Evolving Right to Counsel. Harvard Civil Rights‐Civil Liberties Law Review 48:1–50.Google Scholar
Leo, Richard A., and Gould, Jon. B. 2009. Studying Wrongful Convictions: Learning from Social Science. Ohio State Journal of Criminal Law 7 (7): 7–30.Google Scholar
Levenson, Laurie L. 2014. Searching for Injustice: The Challenge of Postconviction Discovery, Investigation and Litigation. Southern California Law Review 87:545–84.Google Scholar
Levenson, Laurie L. Forthcoming. The Cure for the Cynical Prosecutor's Syndrome: Rethinking the Prosecutor's Role in Post‐conviction Cases. Berkeley Journal of Criminal Law 20.Google Scholar
Levine, Kay L., and Wright, Ronald F. 2012. Prosecution in 3‐D. Journal of Criminal Law and Criminology 102 (4): 1119–80.Google Scholar
Lingard, Lorelei, Garwood, Kim, Schryer, Catherine F., and Spafford, Marlee M. 2003. A Certain Art of Uncertainty: Case Presentation and the Development of Professional Identity. Social Science and Medicine 56:603–16.Google Scholar
MacLean, Charles E., James Berles, and Adam Lamparello. 2015. Stop Blaming the Prosecutors: The Real Causes of Wrongful Convictions and Rightful Exonerations. Hofstra Law Review 44:151–200.Google Scholar
Maynard‐Moody, Steven, and Musheno, Michael. 2003. Cops, Teachers, Counselors: Stories from the Front Lines of Public Service. Ann Arbor, MI: University of Michigan Press.Google Scholar
Medwed, Daniel S. 2004. The Zeal Deal: Prosecutorial Resistance to Post‐Conviction Claims of Innocence. Boston University Law Review 84:125–83.Google Scholar
Medwed, Daniel S. 2012. Prosecution Complex: America's Race to Convict and Its Impact on the Innocent. New York: NYU Press.Google Scholar
Melilli, Kenneth J. 1992. Prosecutorial Discretion in an Adversary System. Brigham Young University Law Review 1992:669–704.Google Scholar
Mellon, Leonard R., Jacoby, Joan E., and Brewer, Marion A. 1981. The Prosecutor Constrained by His Environment: A New Look at Discretionary Justice in the United States. Journal of Criminal Law and Criminology 72:52–81.Google Scholar
NaJaime, Douglas. 2012. Cause Lawyers Inside the State. Fordham Law Review 81:649–704.Google Scholar
National Registry of Exonerations. 2015. Exonerations in 2014. Available at http://www.law.umich.edu/special/exoneration (accessed May 31, 2016).Google Scholar
Nelken, David. 2011. Can Prosecutors Be Too Independent? An Italian Case Study, in European Penology, ed. Daems, T., Snaken, S., and Van Sylsmit, D., 249–70. Oxford: Hart Publishing.Google Scholar
Nelson, Robert L. 1983. The Changing Structure of Opportunity: Recruitment and Careers in Large Law Firms. American Bar Foundation Research Journal 1983:109–42.Google Scholar
Nelson, Robert L. 1988. Partners with Power: The Social Transformation of the Large Law Firm. Berkeley, CA: University of California Press.Google Scholar
Nelson, Robert L., and Trubek, David M. 1992. Arenas of Professionalism: The Professional Ideologies of Lawyers in Context, in Lawyers' Ideals/Lawyers' Practices: Transformations in the American Legal Profession, ed. Nelson, Robert L., Trubek, David M., and Solomon, Rayman L., 177–214. Ithaca, NY: Cornell University Press.Google Scholar
Nickerson, Raymond S. 1998. Confirmation Bias: A Ubiquitous Phenomenon in Many Guises. Review of General Psychology 2:175–220.Google Scholar
Oberfield, Zachary W. 2010. Rule Following and Discretion at Government's Frontlines: Continuity and Change During Organizational Socialization. Journal of Public Administration Research and Theory 20 (4): 735–55.Google Scholar
O'Brien, Barbara. 2009. A Recipe for Bias: An Empirical Look at the Interplay Between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making. Missouri Law Review 74:999–1050.Google Scholar
O'Hear, Michael M. 2008. Plea Bargaining and Procedural Justice. Georgia Law Review 42:407–69.Google Scholar
Orenstein, Aviva. 2011. Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence. San Diego Law Review 48:401–46.Google Scholar
Pyrooz, David C., Wolfe, Scott E., and Spohn, Cassia. 2011. Gang‐Related Homicide Charging Decisions: The Implementation of a Specialized Unit in Los Angeles. Criminal Justice Policy Review 22:3–26.Google Scholar
Rassin, Eric. 2010. Blindness to Alternative Scenarios in Evidence Evaluation. Journal of Investigative Psychology and Offender Profiling 7:153–63.Google Scholar
Ross, Lee, Lepper, Mark R., and Hubbard, Michael. 1975. Perseverance in Self‐Perception and Social Perception: Biased Attributional Processes in the Debriefing Paradigm. Journal of Personality and Social Psychology 32:880–92.Google Scholar
Saks, Alan M., and Ashforth, Blake. 1997. Organizational Socialization: Making Sense of the Past and Present as a Prologue for the Future. Journal of Vocational Behavior 51:234–79.Google Scholar
Sarat, Austin. 1998. Between (the Presence of) Violence and (the Possibility of Justice): Lawyering Against Capital Punishment, in Cause Lawyering: Political Commitments and Professional Responsibilities, ed. Sarat, Austin and Scheingold, Stuart, 317–46. New York: Oxford University Press.Google Scholar
Schneider, Andrea Kupfer. 2002. Shattering Negotiation Myths: Empirical Evidence on Effectiveness of Negotiation Style. Harvard Negotiation Law Review 7:143–233.Google Scholar
Schneider, Andrea Kupfer. 2007. Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations? Marquette Law Review 91:145–62.Google Scholar
Simon, Dan. 2012. In Doubt: The Psychology of the Criminal Justice Process. Cambridge, MA: Harvard University Press.Google Scholar
Simon, Dan. 2014. Criminal Law at the Crossroads: Turn to Accuracy. Southern California Law Review 87:421–58.Google Scholar
Skolnick, Jerome H. 1967. Social Control in the Adversary System. Journal of Conflict Resolution 11:52–70.Google Scholar
Smith, Abbe. 2012. Are Prosecutors Born or Made? Georgetown Journal of Legal Ethics 25:943–60.Google Scholar
Smith, Robert J., and Levinson, Justin D. 2012. The Impact of Implicit Bias on the Exercise of Prosecutorial Discretion. Seattle University Law Review 35:795–826.Google Scholar
Sorochan, Donald J. 2008. Wrongful Convictions: Preventing Miscarriages of Justice, Some Case Studies. Texas Tech Law Review 41:93–116.Google Scholar
Stemen, Don, and Frederick, Bruce. 2013. Rules, Resources and Relationships: Contextual Constraints on Prosecutorial Decisionmaking. Quinnipiac Law Review 31:1–83.Google Scholar
Suthers, John. 2008. No Higher Calling, No Greater Responsibility: A Prosecutor Makes His Case. Golden, CO: Fulcrum Publishing.Google Scholar
Utz, Pamela J. 1978. Settling the Facts: Discretion and Negotiation in Criminal Court. Lanham, MD: Lexington Books.Google Scholar
Vance, Cyrus R. Jr. 2013. The Conscience and Culture of a Prosecutor. American Criminal Law Review 50:629–37.Google Scholar
Wheeler, Stanton. 1966 . The Structure of Formally Organized Socialization Settings, in Socialization After Childhood—Two Essays, ed. Brim, Orville G. Jr. and Wheeler, Stanton, 51–105. New York: J. Wiley.Google Scholar
Wilkins, David B. 1999. Partners Without Power? A Preliminary Look at Black Partners in Corporate Law Firms. Journal of the Institute for the Study of Legal Ethics 2:15–48.Google Scholar
Wood, Arthur Lewis. 1967. Criminal Lawyer. New Haven, CT: College and University Press.Google Scholar
Wright, Ronald F., and Levine, Kay L. 2014. The Cure for Young Prosecutors' Syndrome. Arizona Law Review 56 (4): 1065–1128.Google Scholar
Yaroshefsky, Ellen. 2012. New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson . Georgetown Journal of Legal Ethics 25:913–41.Google Scholar
Yaroshefsky, Ellen, and Green, Bruce A. 2012. Prosecutors' Ethics in Context: Influences on Prosecutorial Disclosure, in Lawyers in Practice: Ethical Decision Making in Context, ed. Levin, Leslie and Mather, Lynn, 269–92. Chicago, IL: University of Chicago Press.Google Scholar
Zaloznaya, Marina, and Beth Nielsen, Laura. 2011. Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited. Law & Social Inquiry 36:919–44.Google Scholar