The Role of Prosecutors in Serving Justice after Convictions

Abstract

This Article addresses prosecutors' ethical duty to serve justice after convictions are complete. Prosecutorial justice issues seem to arise less frequently after conviction than at trial. Once defendants are found guilty beyond a reasonable doubt, prosecutors' natural inclination in balancing the equities has been to sidestep defense-oriented actions.

Analyzing the obligation to serve justice after convictions is important precisely because so little attention has been paid to it. There are at least three reasons why prosecutors are ill-equipped to analyze their post-trial obligations on their own. First, there is little law governing the subject. Second, prosecutors' incentives at the post-conviction stage militate against taking action that benefits convicted defendants. Third, identifying what it means to serve justice is a complex task.

Because prosecutors properly embrace a presumption that convicted defendants have received a fair trial, almost any prosecutorial reaction that maintains the status quo seems justified. Nevertheless, once appeals are complete, the prosecutor may be the only participant in the criminal justice system in a position to rectify a wrong. Prosecutors, for the most part, have been left to their own devices in determining how to balance these considerations.

This Article first sets forth categories of realistic scenarios that implicate a post-conviction obligation to do justice and discusses the limited case law addressing the subject. It then identifies ways that prosecutors and rulemakers might think about the issues. Finally, the article offers suggestions for how ethics code drafters and other regulators should begin to resolve some of the core questions.

Keywords: postconviction, post-conviction, post-trial, prosecutorial misconduct, innocent defendant, dna evidence, innocence statute, innocence project, prosecutor, government attorney

JEL Classification: K10