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THE PROSECUTOR AS MINISTER OF JUSTICE:
PREACHING TO THE UNCONVERTED FROM THE
POST-CONVICTION PULPIT
Daniel S. Medwed*
Abstract: This Article explores how the “minister of justice” theory of the American
prosecutor has translated into practice in the post-conviction arena. Specifically, this vague
theory, when coupled with a dearth of ethical rules and judicial guidance, has not gained
traction in the post-conviction sphere, and few concrete principles exist to govern
prosecutorial behavior after the conviction of a criminal defendant. This Article argues for a
fuller realization of the minister-of-justice ideal for prosecutors in the post-conviction
process where the factual innocence of a criminal defendant is in question. To truly
effectuate the minister-of-justice goal, prosecutors should take a more active part in
rectifying wrongful convictions by considering the formation of internal post-conviction
“innocence units” geared toward ferreting out potential wrongful convictions and assisting in
presenting them to courts.

INTRODUCTION .............................................................................38
I. THE "MINISTER OF JUSTICE" MODEL PRIOR TO
CONVICTION: IDEALS AND REALITY ...............................41
A. Theory ....................................................................................41
B. Practice ...................................................................................46
II. PROSECUTORIAL OBLIGATIONS AND POSTCONVICTION CLAIMS OF INNOCENCE ............................49
A. Resisting Innocence................................................................49
B. Counteracting the Resistance to Innocence ............................55
III. THE INNOCENCE MOVEMENT AND PROSECUTORIAL
ETHICS: THE CASE FOR PROSECUTORS TAKING
GREATER STEPS TO FACILITATE THE RELEASE OF
THE INNOCENT .....................................................................60
A. The Merits of Prosecutorial Innocence Units .........................60
B. Current Innocence Unit Models .............................................63
CONCLUSION ..................................................................................68

*

Associate Professor of Law, University of Utah, S.J. Quinney College of Law. J.D. Harvard Law
School, 1995; B.A. Yale College, 1991. I am grateful to Maureen Howard, Jackie McMurtrie, the
University of Washington School of Law, and the Washington Law Review for inviting me to
participate in this symposium on prosecutorial ethics in tribute to the late Norm Maleng, the
longtime and well-respected chief prosecutor of King County. Special thanks as well to Bruce
Green, Sharissa Jones, and Ellen Yaroshefsky for sharing their thoughts on an earlier draft of this
piece and to Tara Harrison and Razvan Ungureanu for their helpful research assistance.

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INTRODUCTION
One of my law students recently had a job interview with a
prosecutor’s office. The interview seemed to be progressing nicely, in
the student’s estimation, until he was asked whether his previous
experiences in the law had provided him with a chance to “taste blood.”
Silence reigned until the interviewer followed up by explaining his wish
to hire only trial lawyers who had already tasted blood and liked it. This
anecdote once again alerted me to the troubling disconnect between the
“minister of justice” ideal of the American prosecutor and the on-thestreets reality of prosecutorial behavior. The image of the prosecutor as
carnivorous aggressor in the adversarial den of the criminal courts is
alive and well, not necessarily in such blatant form as the infamous
“Two-Ton Contest” in Illinois—in which prosecutors vied to handle
cases involving the heaviest criminal defendants in the hopes of
becoming the first to convict four thousand pounds of flesh1—but rather
in numerous, more subtle ways. That is, the institutional and societal
acceptance of the view that the prosecutor’s primary goal is “to convict”
lingers, even in the face of evidence that wrongful convictions occur
with disturbing regularity in the United States.
This notion of the American prosecutor as principally concerned with
garnering and maintaining convictions not only contributes to the
conviction of the innocent, but also makes it vastly harder for the
wrongfully convicted to achieve freedom, a daunting undertaking even
under perfect circumstances. After a defendant has been convicted, it
becomes increasingly difficult to critically examine the underlying
legitimacy of that result. Appellate courts are limited in the issues that
they may consider during the direct appeal of criminal convictions, and
generally entertain only those topics presented to the judge at trial.2 The

1. See, e.g., Maurice Possley & Ken Armstrong, The Flip Side of a Fair Trial, CHI. TRIB., Jan. 11,
1999, at 1 (discussing the nature of the “Two-Ton Contest” within the State’s Attorney’s Office for
Cook County).
2. See, e.g., URSULA BENTELE & EVE CARY, APPELLATE ADVOCACY: PRINCIPLES AND
PRACTICE 77 (4th ed. 2004) (“At all levels of appellate review, it is a fundamental rule that the
appellate court is bound strictly by the record of the evidence adduced in the trial court. . . . [T]he
next most important limitation on an appellate court’s scope of review is the general rule that any
legal issue raised on appeal must have been ‘preserved.’ That is, the issue must first have been
presented to the trial court.”).

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task of evaluating claims of factual innocence therefore typically falls
into the realm of the collateral post-conviction process, such as writs of
habeas corpus or coram nobis, or their statutory analogues.3 States are
notoriously suspicious of post-conviction innocence claims based on
newly discovered evidence,4 and the procedures in this area usually
reflect this distrust by featuring stringent statutes of limitations, onerous
burdens of proof, and deferential standards of appellate review.5 A key
variable, then, in the ability of a criminal defendant to have a chance for
success on a post-conviction claim of innocence often lies in the nature
of the prosecutor’s response; prosecutorial openness to the possibility of
the defendant’s innocence may go a long way toward convincing the
judge of the merits of that claim, if only to the extent of granting an
evidentiary hearing.6
This Article argues for a fuller realization of the minister-of-justice
ideal for prosecutors in the post-conviction process where the factual
innocence of a criminal defendant is in question, and builds upon a
previous piece that I wrote regarding the phenomenon of prosecutorial
resistance to innocence claims.7 Specifically, to truly effectuate the

3. See generally Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach
to Newly Discovered Evidence of Innocence, 40 U.C. DAVIS L. REV. 1437 (2007) [hereinafter
Medwed, California Dreaming] (discussing California’s approach to post-conviction innocence
claims based on newly discovered non-DNA evidence); Daniel S. Medwed, Introduction to Beyond
Biology: Wrongful Convictions in the Post-DNA World, 2008 UTAH L. REV. 1 (2008) (introducing a
symposium on wrongful convictions unrelated to DNA evidence); Daniel S. Medwed, Up the River
Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State
Courts, 47 ARIZ. L. REV. 655 (2005) [hereinafter Medwed, Up the River] (analyzing state
approaches to newly discovered non-DNA evidence claims); Kathy Swedlow, Don’t Believe
Everything You Read: A Review of Modern “Post-Conviction” DNA Testing Statutes, 38 CAL. W. L.
REV. 355, 382–84 (2002) (critiquing state post-conviction statutes governing DNA testing).
4. See, e.g., People v. Sutton, 15 P. 86, 88 (Cal. 1887) (suggesting that claims of newly
discovered evidence should be “regarded with distrust and disfavor”).
5. See generally Medwed, Up the River, supra note 3 (describing the procedures through which
post-conviction claims of innocence are typically litigated in state courts).
6. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of
Innocence, 84 B.U. L. REV. 125, 128 (2004) (“[W]here post-conviction innocence claims are
unrelated to DNA testing, such as those involving statements by previously unknown witnesses or
confessions by the actual perpetrator, the prosecution can influence how courts will resolve the
claims by deciding whether to cooperate with the defense . . . .” (internal citations omitted)); see
also Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence
of Innocence, 6 OHIO ST. J. CRIM. L. (forthcoming 2009) (manuscript at 22, on file with author) (“A
court is more likely to grant relief if the prosecutor joins in a defendant’s motion to set aside his
conviction based on new evidence.”).
7. See Paul Parker & Ben Coate, Whose Justice? Prosecution and Defense Reactions to CapitalCase Reversals, 29 JUST. SYS. J. 367, 379–80 (2008) (explaining the results of an empirical study of

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minister-of-justice goal, prosecutors should play a more active role in
rectifying wrongful convictions by forming internal post-conviction
“innocence units” geared toward ferreting out potential wrongful
convictions and assisting in presenting these cases to courts.8 Part I of
this Article discusses the minister-of-justice ideal for prosecutors, as
articulated by the U.S. Supreme Court and assorted codes of professional
conduct, and the countervailing pressure on prosecutors to procure
convictions at the trial level. Next, Part II examines the rules governing
prosecutors’ post-conviction duties to correct wrongful convictions (or
rather, the lack thereof) and explores how prosecutorial attitudes evolve
in the aftermath of a conviction—how institutional, professional, and
psychological incentives are normally aligned with preserving the
integrity of the trial result. Part III of the Article advocates for the
creation of internal prosecutorial innocence units as a way of fulfilling
the minister-of-justice ideal in the post-conviction sphere, emphasizing
the ethical and moral obligations of prosecutors to facilitate the
exoneration of the innocent, not to mention the practical benefits that
would ensue. The establishment of these units would help to strengthen
the legacy of Norm Maleng, the late King County prosecutor to whom
this symposium is dedicated, and who, by all accounts, embraced and
embodied the minister-of-justice concept as few others have.9
reactions to exonerations and noting that “overall the data here seem to support Medwed’s argument
about the commitment that prosecutors have to a particular outcome”); see generally Medwed,
supra note 6 (examining issues related to prosecutorial resistance to post-conviction innocence
claims). Several other scholars have addressed the nature of prosecutors’ post-conviction ethical
obligations in the context of innocence and have recommended, in general, that prosecutors should
do more to promote justice than the rules currently seem to require. See generally Judith A.
Goldberg & David M. Siegel, The Ethical Obligations of Prosecutors in Cases Involving
Postconviction Claims of Innocence, 38 CAL. W. L. REV. 389 (2002) (exploring the ethical
obligations of prosecutors in the realm of post-conviction innocence claims); Fred C. Zacharias, The
Role of Prosecutors in Serving Justice After Convictions, 58 VAND. L. REV. 171 (2005) (analyzing
the issues surrounding the post-conviction ethical obligations of prosecutors, including situations
related to innocence claims). In addition, Bruce Green and Ellen Yaroshefsky are currently working
on an interesting article on this topic. See Green & Yaroshefsky, supra note 6.
8. I have raised this idea before, and I wish to develop and refine it further in this Article. See
Medwed, supra note 6, at 175–77 (suggesting that district attorneys’ offices consider creating postconviction units).
9. See, e.g., Jim Brunner, Maleng Leaves a Living Legacy, THE SEATTLE TIMES, May 25, 2007, at
A1 (noting that U.S. District Court Judge Ricardo Martinez recalls that “Maleng often told his
prosecutors, ‘Our job is to do justice, and that doesn’t necessarily mean a conviction.’”). Norm
Maleng advocated for, among other innovations, alternatives to incarceration for certain non-violent
criminal offenders and helped to create a specialized drug court in King County to address the
particular issues wrought by drug addiction. Id. Shortly before his death, Maleng wrote in a
foreword to a report released by the American Bar Association’s Ad Hoc Innocence Committee that

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I.

THE “MINISTER OF JUSTICE” MODEL PRIOR TO
CONVICTION: IDEALS AND REALITY

A.

Theory

For over 150 years, courts and scholars have consistently urged for
the image of the American prosecutor as a “minister of justice,” a person
who, in effect, never loses a case, whether conviction or acquittal, as
long as the outcome is fair.10 Prosecutors in the United States represent
“the people,” not individual victims or the interests of special groups.11
As a result, the prosecutor’s role in the adversarial system differs
substantially from that of the defense attorney; the prosecutor is a quasijudicial officer. In 1935, the U.S. Supreme Court classified the
prosecutor as
the representative . . . of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he
is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor—indeed,
he should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain
from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a
just one.12

“[t]he next step is to instill in every prosecutor’s office, police agency, and crime laboratory an
unwavering ethic to seek the truth through the most reliable methods available. This carries with it
the obligation to refrain from using investigative techniques that may yield questionable results.”
ABA CRIMINAL JUSTICE SECTION’S AD HOC COMM. TO ENSURE THE INTEGRITY OF THE CRIMINAL
PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY ix (Paul
Giannelli & Myrna Raeder eds., 2006).
10. The American prosecutor’s obligation to seek justice is traceable as far back as George
Sharwood’s 1854 “Essay on Professional Ethics.” J. George Sharwood, An Essay on Professional
Ethics (F.B. Rothman 5th ed. 1993) (1854). See also Jane Campbell Moriarty, “Misconvictions,”
Science, and the Minister of Justice, 86 NEB. L. REV. 1, 21–22 n.117 (2008).
11. See Angela Davis, Prosecution and Race: The Power and Privilege of Discretion, 67
FORDHAM L. REV. 13, 57–58 (1998) (discussing how this populist model evolved in the 1820s as a
way of making the government accountable to the electorate).
12. Berger v. United States, 295 U.S. 78, 88 (1935); see also Banks v. Dretke, 540 U.S. 668, 696
(2004) (“We have several times underscored the ‘special role played by the American prosecutor in
the search for truth in criminal trials.’”).

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This view of the prosecutor as a minister of justice has manifested
itself in numerous rules of professional responsibility. For instance, the
comments to Rule 3.8 of the Model Rules of Professional Conduct, a
rule entitled “Special Responsibilities of a Prosecutor,”13 state that “[a]
prosecutor has the responsibility of a minister of justice and not simply
that of an advocate.”14 Likewise, the American Bar Association’s
Criminal Justice Standards reflect this vision, asserting that “[t]he duty
of the prosecutor is to seek justice, not merely to convict.”15 Even the
guidelines put forth by the National District Attorneys Association, an
organization devoted to the interests of prosecutors, proclaim that “[t]he
primary responsibility of prosecution is to see that justice is
accomplished.”16
Judicial opinions from jurisdictions across the country have also
endorsed the minister-of-justice model of prosecutorial behavior17 and
13. This is the sole rule in the Model Rules of Professional Conduct addressing the unique
responsibilities of the prosecutor. See Myrna S. Raeder, See No Evil: Wrongful Convictions and the
Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76
FORDHAM L. REV. 1413, 1429 (2007); Hans P. Sinha, Prosecutorial Ethics: The Duty to Disclose
Exculpatory Material, PROSECUTOR, Jan.–Mar. 2008, at 20 (“Viewing the Rules of Professional
Conduct as a pyramid, Rule 3.8 would constitute the summit of this pyramid. Not only does this rule
speak specifically to the unique responsibilities of the prosecutor, but recognizing the uniqueness
and power of prosecutors, it is also the only rule drafted specifically for one segment of the
profession.”).
14. MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1 (2008).
15. CRIMINAL JUSTICE STANDARDS COMMITTEE, ABA STANDARDS FOR CRIMINAL JUSTICE
PROSECUTION FUNCTION AND DEFENSE FUNCTION, Standard 3-1.2(c) (3d ed. 1993) [hereinafter
ABA STANDARDS FOR CRIMINAL JUSTICE]; see also id. at 3-1.2(b) (“The prosecutor is an
administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound
discretion in the performance of his or her functions.”).
16. NAT’L DIST. ATTORNEYS ASS’N, NATIONAL PROSECUTION STANDARDS 1.1 (2d ed. 1991).
17. See, e.g., In re Peasley, 90 P.3d 764, 772 (Ariz. 2004) (observing that a prosecutor’s interest
“is not that it shall win a case, but that justice shall be done” (internal quotations omitted)); State v.
Pabst, 996 P.2d 321, 328 (Kan. 2000) (“A prosecutor is a servant of the law and a representative of
the people. . . . We are unable to locate an excuse for a prosecutor’s failure to understand the
remarkable responsibility he or she undertakes when rising in a courtroom to announce an
appearance for the State of Kansas.”); State v. Young, 755 A.2d 547, 548 (Me. 2000) (“As we have
noted previously, prosecutors are held to a higher standard regarding their conduct during trial
because they represent the State . . . and because they have an obligation to ensure that justice is
done, as opposed to merely ensuring that a conviction is secured.”); Hosford v. State, 525 So.2d
789, 792 (Miss. 1988) (“‘A fearless and earnest prosecuting attorney . . . is a bulwark to the peace,
the safety and happiness of the people. . . . [I]t is the duty of the prosecuting attorney, who
represents all the people and has no responsibility except fairly to discharge his duty, to hold
himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may
tend to deprive the defendant of the fair trial to which he is entitled . . . .’” (quoting Adams v. State,
30 So.2d 593, 596 (Miss. 1947))); Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982) (noting that
prosecutors must be mindful that their duty is to pursue justice, not merely to convict).

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admonished prosecutors to strive against the conviction of the innocent
so as to best emulate this ideal.18 Notably, courts have created rules
governing the disclosure of exculpatory evidence (Brady material) to
defendants,19 protections against the presentation of perjured
testimony,20 and restrictions on the manner in which prosecutors may
comment on the evidence at trial.21 Specific rules of professional
responsibility, moreover, have served to reinforce these doctrines, with
the effect that any failure to abide by them supposedly results in
sanctions against the individual prosecutor involved.22
18. See, e.g., Bailey v. Commonwealth, 237 S.W. 415, 417 (Ky. 1922) (“[T]he duty of a
prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the
innocent as well as to prosecute the guilty.”); Hurd v. People, 25 Mich. 405, 416 (1872) (“The
prosecuting officer represents the public interest, which can never be promoted by the conviction of
the innocent.”).
19. See generally Brady v. Maryland, 373 U.S. 83 (1963) (the seminal case creating this duty). A
defendant’s access to “Brady material” is treated as a constitutional right. See, e.g., Arizona v.
Youngblood, 488 U.S. 51, 55 (1988) (describing the constitutionally guaranteed right of access to
exculpatory evidence).
20. See, e.g., Mooney v. Holohan, 294 U.S. 103, 112–13 (1935); see generally ROBERT M.
BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE SYSTEM
(2002) (describing the issues related to the use of jailhouse informants at criminal trials, including
the problem of perjury); Alexandra Natapoff, Snitching: The Institutional and Communal
Consequences, 73 U. CIN. L. REV. 645 (2004); Raeder, supra note 13; Melanie D. Wilson,
Prosecutors “Doing Justice” Through Osmosis—Reminders to Encourage a Culture of
Cooperation, 45 AM. CRIM. L. REV. 67 (2008).
21. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 332–33 (1985); People v. Greenwall, 22 N.E.
180, 182 (N.Y. 1889) (“The district attorney representing the majesty of the people, and having no
responsibility except fairly to discharge his duty, should put himself under proper restraint, and
should not, in his remarks in the hearing of the jury, go beyond the evidence, or the bounds of
reasonable moderation.”); see also Charles L. Cantrell, Prosecutorial Misconduct: Closing
Argument in Oklahoma, 31 OKLA. CITY U. L. REV. 379, 379 (2006) (discussing “[t]he persistent and
ongoing problem of prosecutorial misconduct during final arguments in criminal cases” and
attributing it to “built-in pressures of the legal system that allow and even encourage it”); Bennett L.
Gershman, Misuse of Scientific Evidence by Prosecutors, 28 OKLA. CITY U. L. REV. 17, 35 (2003)
(“When courts criticize prosecutors for misconduct, they often are referring to the prosecutor’s
unfair closing argument.”). For a comprehensive account of the subject, see Bennett Gershman’s
excellent treatise, BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT (2d ed. 1999).
22. See, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE, supra note 15, Standard 3-3.11(a) (“A
prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest
feasible opportunity, of the existence of all evidence or information which tends to negate the guilt
of the accused or mitigate the offense charged or which would tend to reduce the punishment of the
accused.”); id. Standard 3-3.1(a) (“A prosecutor ordinarily relies on police and other investigative
agencies for investigation of alleged criminal acts, but the prosecutor has an affirmative
responsibility to investigate suspected illegal activity when it is not adequately dealt with by other
agencies.”); see also MODEL RULES OF PROF’L CONDUCT R. 3.8(d) (1998) (mandating that the
prosecutor in a criminal case “make timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . .”).

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Even so, the reliance on “justice” as a governing principle of
prosecutorial behavior is problematic because of the term’s inherent
vagueness.23 As R. Michael Cassidy has observed, “The legal profession

Regardless of the rules of professional responsibility, state disciplinary organizations are
notoriously reluctant to sanction prosecutors even upon judicial findings of misconduct. See
ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 147 (2008)
(“[S]ome of the language of [Model Rule] 3.8 is vague and subject to interpretation, providing very
little clear guidance to prosecutors and making it difficult to sustain complaints against prosecutors
before disciplinary authorities.”); Angela J. Davis, The Legal Profession’s Failure to Discipline
Unethical Prosecutors, 36 HOFSTRA L. REV. 275, 277 (2007) (“The Supreme Court has
recommended that prosecutors be referred to the relevant disciplinary authorities when they engage
in misconduct. However, for reasons that remain unclear, referrals of prosecutors rarely occur. Even
when referrals occur, state bar authorities seldom hold prosecutors accountable for misconduct.”);
Paul C. Giannelli & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 FORDHAM
L. REV. 1493, 1518 (2007) (“As many commentators have recognized, disciplinary sanctions for
Brady violations appear to be illusory.”); Peter A. Joy, The Relationship Between Prosecutorial
Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV.
399, 427 (2006) (“Bar disciplinary authorities should implement a system to review reported
instances of prosecutorial misconduct and, when they deem it appropriate, conduct investigations or
recommend discipline.”); Samuel J. Levine, Taking Ethical Obligations Seriously: A Look at
American Codes of Professional Responsibility Through a Perspective of Jewish Law and Ethics, 57
CATH. U. L. REV. 165, 170 (2007) (“[T]he discretionary nature of many of the rules often provides
lawyers the opportunity to disregard ethical deliberation without fear of serious consequences.”).
23. See, e.g., R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us
About a Prosecutor’s Ethical Duty to “Seek Justice,” 82 NOTRE DAME L. REV. 635, 637 (2006)
(“‘Justice’ is an example of a highly generalized axiom of behavior—it does not set forth
permissible and impermissible conduct, and it does not set out criteria for how prosecutors are
supposed to determine what is just.”); Joy, supra note 22, at 408 (“Yet, the history of ethics rules
directed toward prosecutors demonstrates that the ethics rules generally have been limited to
nonspecific pronouncements that the prosecutor has ‘special’ responsibilities, different from other
lawyers, and that the prosecutor should ‘seek justice.’”); Fred C. Zacharias, Structuring the Ethics of
Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 50 (1991)
(contending that the “high-minded but overly general ‘justice’ rule masks the difficulty of
regulating” conduct by prosecutors); see also United States v. Agee, 597 F.2d 350, 371 (3d Cir.
1979) (Gibbons, J., dissenting) (urging for firm requirements to minimize prosecutorial misconduct,
and noting that judicial “tongue clicking” about prosecutorial misconduct “has been notoriously
ineffective”). One of the most egregious contemporary examples of a prosecutor’s failure to do
justice, and the inability of the rules of ethics to adequately deter prosecutorial misbehavior, is Mike
Nifong’s performance in the Duke lacrosse case. See, e.g., Robert P. Mosteller, The Duke Lacrosse
Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice,” 76 FORDHAM
L. REV. 1337, 1338 (2007) (“The ethics rulings resulting from this case regarding the established
charges of improper pretrial statements by Nifong, his failure to disclose DNA evidence that tended
to negate guilt, and his deceptive statements to the trial court, lawyers, and the bar are instructive.
However, broad generalization from the rulings is likely to be of limited value because the factors
that produced this disaster in combination with the clarity of proof will likely not be seen again
soon.”); Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to Disbarment of Mike
Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 257
(2008) (“As global as Nifong’s ethics violations were, the case illustrates the importance of specific
duties rather than broad precepts for the imposition of professional discipline.”).

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has left much of the prosecutor’s day-to-day decision making
unregulated, in favor of this catchall ‘seek justice’ admonition.”24 And,
as Cassidy and others have noted, this absence of guidance has left tough
ethical questions largely in the hands of trial prosecutors alone.25
Scholars in the field of prosecutorial ethics have, not surprisingly,
articulated an array of responses to this state of affairs, most of which
are highly critical of the broad, often hortatory nature of the canons of
prosecutorial ethics.26 Some commentators press for more stringent rules
of professional responsibility to channel prosecutorial behavior and
cabin the exercise of individual discretion;27 others recommend
increased training for prosecutors in rendering ethical decisions;28 and

24. See Cassidy, supra note 23, at 637; Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U.
ILL. L. REV. 1573, 1597 (2003) (characterizing Model Rule 3.8 as “woefully incomplete”); Joy,
supra note 22, at 410–11 (observing that the first set of professional ethics rules passed by the
American Bar Association in 1908 contained little guidance for prosecuting and noting that except
for a “statement condemning the suppression of evidence of innocence, the 1908 Canons did not
define what it meant to do justice, or how the prosecutor should reconcile their zealous
representation of the government’s interest in a conviction with justice for the accused”).
25. See Cassidy, supra note 23, at 637–39 (discussing various proposals for channeling
prosecutorial discretion). The lack of guidance may be especially troublesome given the wellchronicled expansion of prosecutorial power in recent decades. See Bennett L. Gershman, The New
Prosecutors, 53 U. PITT. L. REV. 393, 395 (1992) (“[A]s the prosecutor’s investigating, charging,
convicting, and sentencing powers have escalated, the ‘inherent inequality’ between the prosecutor
and the defendant has intensified, making the adversary system almost obsolete.”); Bruce A. Green
& Fred C. Zacharias, “The U.S. Attorneys Scandal” and the Allocation of Prosecutorial Power, 69
OHIO ST. L.J. 187, 188 (2008) (“The centralization of authority within DOJ that the recent firings
[of six U.S. attorneys] exemplify can be seen as a mechanism that facilitates abuse of government
power because it enables the Attorney General and other high-ranking DOJ officials to enforce
prosecutorial decisions that promote partisan objectives, either out of sympathy for the President’s
interests or in direct response to White House importuning.”).
26. See supra notes 23–25 and accompanying text; infra notes 27–29 and accompanying text. For
an interesting essay in support of the broad “do justice” obligation, see Samuel J. Levine, Taking
Prosecutorial Ethics Seriously: A Consideration of the Prosecutor’s Ethical Obligation to “Seek
Justice” in a Comparative Analytical Framework, 41 HOUS. L. REV. 1338, 1340 (2004) (“[T]he
prosecutor’s broad ethical obligation to seek justice serves as a workable and, indeed, appropriate
standard for prosecutorial ethics.”).
27. See, e.g., Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J.
607, 616 (1999); Joy, supra note 22, at 420 (“[T]here is room for much more guidance and clearer
ethical obligations for prosecutors.”); see also Bruce A. Green & Fred C. Zacharias, Prosecutorial
Neutrality, 2004 WIS. L. REV. 837, 897 (suggesting that prosecutors’ offices should create and
publicize their internal policies concerning discretionary decision-making); Joy, supra note 22, at
424–25 (“Implementing internal policies that value ethical conduct, and implementing and
enforcing internal discipline when those norms are violated, would go a long way toward addressing
the issue of prosecutorial misconduct . . . . Internal controls, though, are unlikely to be enough.”).
28. See generally Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual
Framework, 15 AM. J. CRIM. L. 197, 257 (1988) (“Careful training is obviously an essential

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still others suggest that “a renewed focus” on virtuous conduct can help
prosecutors resolve ethical quandaries.29 Regardless of the many
advantages of these proposals, prosecutors are currently bound by only a
few tangible ethical rules in the pretrial and trial spheres, leaving the
amorphous concept of justice to inform much of prosecutorial behavior.
B.

Practice

The minister-of-justice concept—while noble in theory—has not
always translated seamlessly into practice at the trial level in light of the
reality of prosecutorial culture and its organizational pressures. A series
of factors cause trial prosecutors to view their jobs primarily through the
lens of gaining “wins” (convictions) and avoiding “losses” (acquittals).30
In an occupation where success may be difficult to gauge, an individual
prosecutor’s conviction rate serves as a quantifiable, if imperfect, means
of evaluating performance and supervisors often consider this data in
awarding promotions.31 Some prosecutorial offices unabashedly use
conviction rates as a motivational device—for example, by internally
distributing attorneys’ “batting averages,” or listing each lawyer by
name on a bulletin board with a series of stickers reflecting the
conclusions of their recent cases (green for convictions and red for
acquittals).32
ingredient of any program to induce proper prosecutorial conduct.”); Leslie C. Griffin, The Prudent
Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 293 (2000) (“New prosecutors need thorough
orientation programs; these should be followed up with adequate re-training.”).
29. See generally Cassidy, supra note 23.
30. See, e.g., Goldberg & Siegel, supra note 7, at 409 (“The number of convictions obtained may
be a measure of a prosecutor’s individual success or failure.”). The desire to “win” is intertwined
with the pressure to offer plea bargains and avoid the time, risk, and expense of trial. This pressure,
in turn, could lead to the conviction of the innocent. See, e.g., F. Andrew Hessick III & Reshma
Saujani, Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense
Counsel, and the Judge, 16 BYU J. PUB. L. 189, 190 (2002) (“[T]he incentives to a plea bargain are
powerful enough to blind the prosecutor to the defendant’s actual culpability.”).
31. See, e.g., Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse: The
Lessons of Los Angeles, 8 VA J. SOC. POL’Y & L. 305, 321 (2001) (“Promotions within the Los
Angeles District Attorney’s office often include consideration of conviction rates.”); Erik Luna,
System Failure, 42 AM. CRIM. L. REV. 1201, 1213 (2005) (“In general, front-line prosecutors are
evaluated for promotion (and thus higher salary and prestige) by their win-loss record, while chief
prosecutors will be reelected or retained based on, inter alia, the rate and number of convictions
obtained by their office.”); Catherine Ferguson-Gilbert, Comment, It Is Not Whether You Win or
Lose, It Is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for
Prosecutors?, 38 CAL. W. L. REV. 283, 293 (2001) (“Promotions for subordinate prosecutors
depend on their ‘scores’ for convictions.”).
32. See Ferguson-Gilbert, supra note 31, at 290.

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On a macro level, chief prosecutors tend to cite their offices’ overall
conviction records to justify their budgets to local politicians and to
demonstrate, above all, that they are “tough” on crime.33 This “tough on
crime” rhetoric often resonates with the public, an important
consideration given that nearly all state and local district attorneys gain
their positions through public elections.34 Therefore, institutional and
professional incentives in most prosecutorial offices are steadfastly
aligned with the goal of earning convictions—an ambition that does not
invariably dovetail with the minister-of-justice concept.35
Institutional and professional incentives to obtain convictions are
frequently buttressed by psychological pressures as well. As I have
written previously, prosecutors who operate within organizations that
prize convictions “may begin to internalize the emphasis placed on
conviction rates and view their win-loss record as a symbol of their selfworth.”36 Victories at trial can boost a lawyer’s confidence and,
concomitantly, his or her ego; it is not farfetched to suggest that trial
lawyers are renowned for their “big egos” because of the need to exude
confidence before judges and juries.37
Additionally, the unique relationship between individual police
officers and prosecutors can have a subtle, and potentially untoward,
psychological impact on how cases are prosecuted. Specifically, police
“tunnel vision” is a well-chronicled contributor to wrongful convictions;
tunnel vision occurs when detectives, after concentrating on a particular
suspect, subconsciously disregard the possibility of alternative
perpetrators or exculpatory evidence throughout the remainder of the
investigation.38 Prosecutors, for their part, work closely with the police
33. See Bennett L. Gershman, The Prosecutor’s Duty to Truth, 14 GEO. J. LEGAL ETHICS 309,
350 n.223 (2001) (noting the pressure prosecutors face to justify their budgets); Moriarty, supra
note 10, at 23 (“In reality, however, protecting the innocent from conviction does not stand on equal
footing with convicting the guilty—it is doubtful that any elected prosecutor campaigned on the
notion of cases he did not prosecute.”).
34. See DAVIS, supra note 22, at 166–69 (describing the electoral process for prosecutorial offices
across the country); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. &
CRIMINOLOGY 717, 734 (1996) (noting that over ninety-five percent of state and local prosecutors
are elected); Green & Yaroshefsky, supra note 6 (manuscript at 21) (“Releasing convicted
defendants is rarely a route to political popularity.”).
35. See, e.g., BARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND
OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000) (noting that prosecutorial
misconduct occurred in forty-two percent of the initial batch of sixty-two DNA exonerations).
36. Medwed, supra note 6, at 138.
37. See id.
38. See Susan Bandes, Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision, 49

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and may fall prey to a comparable form of tunnel vision at the trial
stage,39 especially as they typically receive only the evidence
incriminating the person whom the police consider the culprit.40
Prosecutors directly interact not only with the police, but also with the
victims and witnesses in their cases, and may become somewhat
emotionally attached to them and their accounts of the criminal event.41
Indeed, decades ago, George Felkenes observed that the various
incentives and pressures facing prosecutors led to the emergence of a
“conviction psychology”42 in the corridors of prosecutorial offices, and
there is nothing to indicate that this phenomenon has abated over the
years.
The upshot of this discussion is that the idealistic image of the
prosecutor as a minister of justice and the attendant doctrines calculated
to transform this image into reality may regrettably mask a much less
glowing truth about prosecutorial conduct at the trial level. In particular,
the demand to obtain convictions can result in prosecutors inadvertently
(and, more rarely, purposefully) aiding in the conviction of the
innocent.43 For instance, one study of seventy-four DNA exonerations
discovered that an element of prosecutorial misconduct occurred at trial

HOW. L.J. 475, 479 (2006) (discussing the effect of tunnel vision on prosecutors); Dianne L. Martin,
Lessons About Justice from the “Laboratory” of Wrongful Convictions: Tunnel Vision, the
Construction of Guilt and Informer Evidence, 70 UMKC L. REV. 847, 848 (2002) (observing that
tunnel vision is a recurring cause of wrongful convictions in common law jurisdictions). For a
detailed analysis of the wide-ranging effect of tunnel vision in the criminal justice system, see
generally Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in
Criminal Cases, 2006 WIS. L. REV. 291 (2006).
39. See Findley & Scott, supra note 38, at 327–31.
40. Id. at 330 (“Prosecutors see the evidence generated by the police investigation, but often do
not see the evidence about alternative suspects who were rejected too quickly, about eyewitnesses
who failed to identify the defendant, or about other disconfirming evidence that police dismissed as
insignificant.”).
41. See, e.g., Judith L. Maute, “In Pursuit of Justice” in High Profile Criminal Matters, 70
FORDHAM L. REV. 1745, 1747 (2002) (“Overzealous prosecutors may become too closely aligned
with law enforcement personnel and forensics witnesses who are willing to shade or falsify their
testimony in order to obtain a conviction.”).
42. See, e.g., George T. Felkenes, The Prosecutor: A Look at Reality, 7 SW. U. L. REV. 98, 99
(1975) (“The work environment of the prosecutor places on him demands that are often ambiguous
and conflicting. The strains of maintaining public support and acting effectively in prosecuting
suspects make this highly visible government position vulnerable to numerous compromises. One
such compromise is the ‘conviction psychology’ attributed to some prosecutors.”).
43. See, e.g., Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecutorial
Discipline Seriously, 8 D.C. L. REV. 275, 275–76 (2004) (discussing the prosecutorial misconduct
involved in the wrongful convictions of Dennis Fritz and Ron Williamson in Oklahoma).

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in thirty-three of those cases.44 Even more, irrespective of the role played
by prosecutors at trial, wrongful convictions are an inevitable component
of the American criminal justice system for, like all systems designed
and operated by humans, it is fallible.45 To that end, it is crucial to
survey the rules governing prosecutors’ responses to post-conviction
claims of innocence—some of which are bound to be meritorious—and
to ponder as a normative matter how prosecutors should respond to such
claims in order to best comport with the minister-of-justice goal.
II.

PROSECUTORIAL OBLIGATIONS AND POST-CONVICTION
CLAIMS OF INNOCENCE

A.

Resisting Innocence

In light of data suggesting that wrongful convictions are widespread,
prosecutors should adopt a more open-minded approach to postconviction innocence claims than has traditionally been the case. Since
1989, over 200 prisoners have proven their innocence through postconviction DNA testing.46 This figure likely belies the existence of a
much larger group of innocent inmates who remain incarcerated, as
biological evidence suitable for DNA testing is seldom available in
criminal cases,47 and procedural and evidentiary obstacles make it
44. See The Innocence Project, Understand the Causes: Government Misconduct,
http://www.innocenceproject.org/understand/Government-Misconduct.php (last visited Feb. 11,
2009), permanent copy available at http://www.law.washington.edu/wlr/notes/
84washlrev37n44.pdf.
45. See, e.g., FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI: A CRITICAL ANALYSIS
FOR LAWYERS AND LAYMEN 108 (Little, Brown, & Co. 1927) (“All systems of law, however wise,
are administered through men, and therefore may occasionally disclose the frailties of men.
Perfection may not be demanded of law, but the capacity to correct errors of inevitable frailty is the
mark of a civilized legal mechanism.”).
46. For an updated listing of DNA exonerations, see The Innocence Project, Know the Cases,
http://www.innocenceproject.org/know/ (last visited Feb. 11, 2009), permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n46a.pdf. See also BARRY SCHECK &
PETER NEUFELD, 200 EXONERATED: TOO MANY WRONGLY CONVICTED (2007),
www.innocenceproject.org/200/ip_200.pdf,
permanent
copy
available
at
http://www.law.washington.edu/wlr/notes/84washlrev37n46b.pdf (analyzing the first two-hundred
DNA exonerations in the United States).
47. See, e.g., Death Penalty Overhaul: Hearing Before the S. Comm. on the Judiciary, 107th
Cong. (2002) (statement of Barry Scheck, Co-Founder, The Innocence Project), available at 2002
WL 1335515 (“The vast majority (probably 80%) of felony cases do not involve biological
evidence that can be subjected to DNA testing.”); Nina Martin, Innocence Lost, S.F. MAG., Nov.
2004, at 78, 105 (“[O]nly about 10 percent of criminal cases have any biological evidence—blood,
semen, skin—to test.”).

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burdensome for prisoners to attain exoneration in cases lacking the
magic bullet of biology.48 In both DNA and non-DNA innocence cases,
prosecutorial responses to innocence claims can influence the
outcomes,49 even if a prosecutor technically lacks the authority to
unilaterally order the release of an inmate.50 Most notably, a prosecutor’s
willingness to join in a defense motion for an evidentiary hearing,
facilitate a post-conviction investigation into a claim’s merits, and/or
readily consent to DNA testing sends an important, possibly
instrumental, message to the judiciary and removes a major impediment
to the favorable resolution of such cases—adversarialism.51 The
minister-of-justice model, if taken seriously, implies that prosecutors
should take all reasonable steps necessary to verify whether an
innocence claim is viable, and, upon achieving such confirmation, assist
in exonerating that defendant.
Yet, despite the foregoing observations, there are alarming signs that
prosecutors do not unfailingly adhere to the minister-of-justice ethos in
the post-conviction arena. One study by the Innocence Project at the
Benjamin N. Cardozo School of Law demonstrated that prosecutors had
consented to post-conviction DNA testing in less than half the cases in
which DNA testing ultimately exonerated an inmate.52 The annals of
criminal law are also rife with tales of prosecutors behaving defensively
even when faced with strong evidence of innocence exculpating the
convicted. At the extreme end of the spectrum, prosecutors have
apparently destroyed evidence to maintain a trial result;53 less extreme
but still deeply worrisome, prosecutors confronted with the likelihood of

48. See supra notes 4–5 and accompanying text.
49. See generally Medwed, supra note 6.
50. As Fred Zacharias explains:
A prosecutor who learns of even fully exculpatory evidence does not have personal authority to
release a convicted defendant. The ordinary procedure for adjusting a conviction is for a
defendant to bring a motion to vacate the judgment and for a new trial (with or without the
prosecutor’s blessing). Only once a court grants that motion does the prosecutor regain the
discretion to dismiss or to negotiate a result that she had before conviction.
Zacharias, supra note 7, at 185–86.
51. See Green, supra note 27, at 638 n.133 (mentioning that prosecutors often respond
defensively to post-conviction innocence claims by discounting the legitimacy of the purported
newly discovered evidence); Zacharias, supra note 7, at 186–87 (“[A] prosecutor’s consent to a
motion for a new trial may have a persuasive effect on a judge making these determinations.”); see
generally Medwed, supra note 6 (analyzing prosecutorial resistance to post-conviction innocence
claims).
52. See Medwed, supra note 6, at 129 n.15.
53. See id. at 129 n.18.

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a wrongful conviction in their jurisdiction have more than once
concocted revised theories of the case that bear scant resemblance to the
approach at trial in order to rationalize the continued incarceration of a
defendant.54 What might explain such disturbing accounts? While a fullfledged assessment of the bases for prosecutorial animosity to postconviction innocence claims transcends the scope of this Article, it is
worth briefly addressing a handful of the key explanations: (1) the lack
of firm post-conviction ethical obligations mandating particular
prosecutorial responses to innocence claims, (2) resource constraints, (3)
concerns for systemic finality, and (4) psychological barriers.
With respect to ethics, prosecutors encounter few concrete obligations
to implement the minister-of-justice ideal in the post-conviction setting
in general and in the realm of innocence claims in particular. Indeed, the
ethical rules guiding prosecutorial approaches to post-conviction
innocence claims often seem more nebulous than those applicable to
prosecutors in the pretrial and trial stages. To be sure, this may be
largely a function of the unique foundation upon which such claims rest.
Many of the ethical rules covering prosecutorial behavior in the pretrial
and trial contexts—including the obligation to disclose Brady material—
are grounded in concerns for fairness and due process to criminal
defendants.55 Post-conviction claims of innocence, however, do not
intrinsically implicate process-oriented values; the crux of an innocence
claim normally lies not in whether the trial was fair, but whether it was
factually accurate.56 Perhaps it should not come as a shock to learn that
most ethical rules pertaining to prosecutors, given that they derive from
fairness-based goals, fail to mold themselves easily to the odd contours
of factual innocence claims that crop up after trial. In addition, as Fred
Zacharias has noted, the dearth of post-conviction ethical obligations for
prosecutors may be partly attributable to the basic fact that legislators
and professional code drafters have not historically paid much attention
54. See, e.g., Daniel S. Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to
Admit Guilt at Parole Hearings, 93 IOWA L. REV. 491, 523–38 (2008) (discussing the case of Bruce
Dallas Goodman in Utah and the manner in which prosecutors responded to DNA results signaling
that Goodman was not the source of semen in a case prosecuted as a rape-murder).
55. See, e.g., Goldberg & Siegel, supra note 7, at 407 (“First, innocence-based claims for
postconviction review are premised on the notion that the trial result was factually incorrect, not that
the trial process was somehow unfair. The existing constitutional obligations for prosecutors to
disclose evidence or information . . . have all been based on the constitutional guarantee of due
process under the fourteenth amendment.”).
56. Id. See also Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) (finding no Brady violation for
failing to turn over “old” evidence for “new” testing in post-conviction sphere).

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to post-conviction issues.57 For example, a well-regarded font of
prosecutorial ethics—the American Bar Association’s Standards for
Criminal Prosecutions—encompasses prosecutorial behavior at each
stage of the pretrial and trial process through sentencing and then
suddenly ceases.58
Along with the paucity of ethical rules, resource limitations affect
prosecutorial responses to inmates’ assertions of innocence.
Prosecutorial offices, like all government agencies, have finite resources
and are politically accountable for their expenditures.59 In accordance
with these fiscal constraints, trial prosecutors often carry large caseloads,
a burden that would presumably grow if offices were to apportion
certain lawyers toward the assessment of post-conviction innocence
claims and remove them from the trial and direct appeals dockets.60
Simply put, asking for prosecutors to do more work in post-conviction
matters might push many of these financially strapped organizations
beyond the breaking point.
The criminal justice system on the whole also has a strong concern for
finality. Ultimately, cases must become final for judges, lawyers,
victims, and even defendants, to experience some psychological
closure.61 And, if cases did not have a point of finality, the system could
grind to a halt, overcome by a seemingly endless spate of appeals and
collateral petitions.62 The prospect of encouraging prosecutors to
57. See Zacharias, supra note 7, at 173 (“Prosecutorial discretion is at its height in the
postconviction context because legislators and professional code drafters have not focused on
postconviction issues.”).
58. See id. at 174 (“The American Bar Association’s Standards for Criminal Prosecutions, for
example, address prosecutorial conduct at all stages through sentencing, but then stop.”)
59. See supra note 33 and accompanying text.
60. See, e.g., Chemerinsky, supra note 31, at 312 (“In speaking to many assistant District
Attorneys, I heard the constant complaint about the sheer volume of cases and how difficult it was
for them to do anything but try to process them as effectively as possible.”).
61. See, e.g., Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual
Innocence and Postconviction DNA Testing, 151 U. PA. L. REV. 547, 606 (2002) (noting that the
U.S. Supreme Court has emphasized that “finality is essential to both the retributive and deterrent
functions of the criminal law and to the interests of victims of crimes in obtaining closure”); see
also Green & Yaroshefsky, supra note 6 (manuscript at 42) (“There is a legitimate interest in
something approximating ‘finality’ in the criminal process, which would be seriously undercut by a
standard calling for prosecutors to try to secure a convicted defendant’s release whenever new
evidence raises no more than a reasonable doubt about guilt, rather than some genuine likelihood of
innocence.”).
62. See, e.g., George C. Thomas III et al., Is It Ever Too Late for Innocence? Finality, Efficiency,
and Claims of Innocence, 64 U. PITT. L. REV. 263, 294 (2003) (“If there were no way at some point
to impose a sentence with finality, prisoners would endlessly search for scraps of new evidence and

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undertake a more proactive stance in reevaluating trial results and
investigating innocence claims violates the very principle of finality.63
Last, but not least, prosecutors encounter powerful psychological
impediments to the idea of aiding in the evaluation and possibly the
investigation of post-conviction innocence claims. As an initial matter,
there is the “needle in a haystack” dilemma; the avalanche of postconviction petitions filed by inmates each year admittedly contains few
meritorious claims.64 This imbalance between the frivolous and the valid
creates a disincentive for courts, let alone prosecutors, to muster the
energy to tackle each claim with zest and equanimity.65 Pervasive
cynicism about post-conviction petitions may contaminate some
prosecutors and jaundice their view of innocence claims.66 Furthermore,
showing openness to a post-conviction claim of innocence could
jeopardize a prosecutor’s “tough on crime” veneer,67 or perhaps worse,
show personal and professional weakness.68
Cognitive biases also partially account for why prosecutors appear so
resistant to the idea of wrongful convictions occurring on their watch or
even on that of a predecessor.69 For instance, scholars have studied the
bombard courts with petitions to reopen cases.”).
63. In a sense, it also undercuts the jury’s role. See, e.g., Lee v. Moore, 213 So.2d 197, 198 (Ala.
1968) (commenting in a civil case that courts should be reluctant to grant motions for a new trial
“because the verdict of a jury results from one of the most precious rights in our system of
government, that is, the right of trial by jury”).
64. See Medwed, supra note 6, at 148–50.
65. Id.
66. See, e.g., Adam Liptak, Prosecutors See Limits to Doubt in Capital Cases, N.Y. TIMES, Feb.
24, 2003, at A1, permanent copy available at http://www.law.washington.edu/wlr/notes/
84washlrev37n66.pdf (noting that Jennifer Joyce, circuit attorney for St. Louis, Missouri, “saw a
‘steady trickle’ of ‘deceitful and sadistic’ motions” where “[t]he defendant knows he is
guilty . . . and he wants to play the lottery”).
67. See Medwed, supra note 6, at 153 (discussing how prosecutors often campaign on tough-oncrime platforms).
68. See, e.g., Goldberg & Siegel, supra note 7, at 409 (“Prosecutors may be perceived as being
‘soft’ on crime or sympathetic to defendants if they assist with, or fail to object to, postconviction
testing.”). As Abbe Smith has noted, “In order not to be played for a fool, taken for a ride,
considered a sucker—a nightmarish reputation for a prosecutor—prosecutors often become
suspicious, untrusting, disbelieving.” Abbe Smith, Can You be a Good Person and a Good
Prosecutor?, 14 GEO. J. LEGAL ETHICS 355, 384 (2001).
69. See, e.g., Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 N.Y.U.
J.L. & LIBERTY 512, 515 (2007) (“A growing literature seeks to attribute poor prosecutorial decision
making to a set of information-processing biases that we all share, rather than exclusively to ethical
or moral lapses. . . . [P]rosecutorial resistance to defense claims of innocence can be viewed as deep
(and inherently human) adherences to the ‘sticky’ presumptions of guilt that result from various
forms of cognitive bias . . . .”).

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effect of the “status quo bias,” a cognitive heuristic explaining that
individuals cling to their initial decision in most matters and that it takes
a significant amount of contrary data to push them away from that
reference point.70 As Alafair Burke has observed, this form of bias—in
which individuals seek to confirm, rather than reject, their initial
hypotheses—affects how people interpret evidence challenging a
previous theory.71 That is, people may selectively process new
information by overvaluing data supportive of their earlier decision and
discounting findings that undermine it.72
The status quo bias likely affects many prosecutors handling postconviction innocence claims on cases they previously tried. Information
is sparse regarding how prosecutors administer the receipt and review of
post-conviction claims of innocence,73 but it appears that smaller offices
tend to assign such petitions to the attorney who originally handled the
case, whereas larger offices might allocate them to other lawyers in the
appeals unit or trial bureau, or more rarely, to attorneys exclusively
entrusted with litigating collateral cases.74 Where post-conviction

70. Medwed, Up the River, supra note 3, at 701–02; see also Moriarty, supra note 10, at 25 (“It
may be that the system asks too much of a lawyer to both play the game and call a foul on himself
during it. The first problem, of course, is in the need for second-guessing oneself in the heat of
competition, requiring prosecutors to question continually whether the investigation has nabbed the
right person.”).
71. Alafair S. Burke, Improving Prosecutorial Decision-Making: Some Lessons of Cognitive
Science, 47 WM. & MARY L. REV. 1587, 1593–94 (2006) (discussing the confirmation bias, which
appears comparable to the status quo bias); see also Findley & Scott, supra note 38, at 308
(discussing confirmation bias and noting that “[d]ifferent researchers use slightly different labels for
related and sometimes overlapping conditions and effects”); id. at 309 (“Confirmation bias, as the
term is used in psychological literature, typically connotes the tendency to seek or interpret evidence
in ways that support existing beliefs, expectations, or hypotheses.”).
72. Burke, supra note 71, at 1593–94 (describing the phenomenon of selective information
processing). Burke also raises a number of other fascinating cognitive biases that may affect
prosecutorial decision-making, including “belief perseverance” (in which people embrace a theory
even long after countervailing evidence suggests that it should be abandoned); see also Findley &
Scott, supra note 38, at 314–16 (discussing the presence of belief perseverance in many wrongful
convictions).
73. See Green & Yaroshefsky, supra note 6 (manuscript at 29) (“But it is likely that, despite what
is known about cognitive biases, prosecutors’ offices ordinarily refer new evidence to the trial
prosecutor who obtained the conviction if he is still in the office, on the theory that he best knows
the case and is therefore best qualified to determine whether the evidence is new, credible and
significant.”); see generally Medwed, supra note 6, at 143–44 (“Admittedly, there is limited data
pertaining to how prosecutors’ offices across the country handle post-conviction motions
administratively.”).
74. See Medwed, supra note 6, at 143–44.

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petitions are assigned to the same prosecutors who tried the case,75 the
impact of the status quo bias might be profound; people are often
especially reluctant to second-guess their own choices.76
Even when petitions are distributed to other lawyers in the office, the
status quo bias probably persists. Studies show that individuals within
the same profession or organization frequently respect the decisions of
their cohorts due to the power of “conformity effects,” a desire to act in
line with a peer.77 A person may be particularly reluctant to alter a
colleague’s decision where that colleague had access to greater
information at the time of the preceding decision.78 This situation
emerges when a post-conviction litigator reviews the work of a trial
attorney who, among other things, interacted with witnesses and the
police closer in time to the event that gave rise to the prosecution.
Similar to the status quo bias, the “egocentric bias” shows that people
generally like to craft a flattering vision of themselves and their
occupation, and thus neglect or discount information that contradicts that
positive self-image.79 These biases could infect not only the individual
prosecutor reviewing his or her own trial work after procuring a
conviction, but also a colleague analyzing the performance of a coworker in the organization.
B.

Counteracting the Resistance to Innocence

Despite the many barriers, strands of common law doctrine and
certain rules of professional responsibility reveal that prosecutors bear
some semblance of a duty to take post-conviction claims of innocence
75. See id.
76. This may be intertwined with the “egocentric bias.” See infra note 79 and accompanying text.
Individuals may be particularly wary of second-guessing their initial decisions after those decisions
have received external validation—for instance, through trial results and affirmation on direct
appeal. See Findley & Scott, supra note 38, at 319 (discussing the “reiteration effect,” whereby
one’s confidence in a claim increases after that claim has been repeated and affirmed).
77. See Medwed, Up the River, supra note 3, at 702–03; see also Findley & Scott, supra note 38,
at 309 (mentioning how the confirmation bias can be “amplified” when the initial hypotheses
stemmed from “a person of superior status in a team effort”). Moreover, a prosecutor who disagrees
with a superior’s vision of a case could face a difficult ethical conundrum. See, e.g., Benjamin
Weiser, Doubting Case, City Prosecutor Aided Defense, N.Y. TIMES, June 23, 2008, at A1
(discussing the saga of an assistant prosecutor in New York City who questioned his superiors’
decision to challenge a post-conviction innocence claim and, instead, surreptitiously assisted the
defense).
78. See Medwed, Up the River, supra note 3, at 702–03.
79. Id. at 701.

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seriously. First, language from case law—admittedly often in the form of
dicta—intimates that a prosecutor’s Brady obligations continue into the
post-conviction sphere; seemingly, prosecutors are ethically required to
disclose after-acquired information that undermines confidence in the
integrity of a conviction.80 Some courts have hinted that requests for
post-conviction DNA testing implicate this lingering Brady duty and
that, accordingly, defendants should be entitled to retrieve the biological
evidence from their cases.81 Several scholars have even posited that due
process protections may mandate such disclosure.82 Nevertheless, the
post-conviction scope of the duty to disclose exculpatory evidence is far
from clear and at least one prominent scholar deems the issue of whether
Brady applies to collateral claims “unsettled.”83

80. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (“[T]he duty to disclose
[exculpatory material] is ongoing.”); Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (observing
that prosecutors should notify authorities of information that “casts doubt upon the correctness of
the conviction”); Smith v. Roberts, 115 F.3d 818, 820 (10th Cir. 1997) (“We also agree, and the
State concedes, that the duty to disclose is ongoing and extends to all stages of the judicial
process.”); State v. Bennett, 81 P.3d 1, 9 (Nev. 2003) (indicating that the duty to disclose
exculpatory evidence extends to post-conviction proceedings). Contra Grayson v. King, 460 F.3d
1328, 1337 (11th Cir. 2006) (“Imbler does not suggest that the prosecution maintains an ongoing
due process obligation to inform the defense of after-acquired evidence that might cast doubt on a
conviction. . . . [I]t is the suppression of evidence before and during trial that carries Brady’s
constitutional implications.” (emphasis in original)); Gibson v. Superintendent of N.J. Dep’t of Law
& Pub. Safety, 411 F.3d 427, 444 (3d Cir. 2005) (suggesting that the Brady duty does not continue
after trial).
81. See, e.g., Sewell v. State, 592 N.E.2d 705, 708 (Ind. Ct. App. 1992) (“Brady is implicated in
post-conviction requests for forensic tests only where a conviction rests largely upon identification
evidence and advanced technology could definitively establish the accused’s innocence.”); Dabbs v.
Vergari, 570 N.Y.S.2d 765, 768 (N.Y. Sup. Ct. 1990) (“[W]here evidence has been preserved which
has exculpatory potential, that evidence should be discoverable after conviction.”); Jenner v.
Dooley, 590 N.W.2d 463, 471–72 (S.D. 1999) (holding that the government must allow for DNA
testing in compelling cases based on principles of “elementary fairness”). The U.S. Supreme Court
recently agreed to hear a case from Alaska in which a major issue concerns whether defendants
have a limited federal constitutional right to have access to biological evidence for post-conviction
DNA testing. See District Attorney’s Office v. Osborne, U.S. Supreme Court, (Nov. 3, 2008),
available at http://www.supremecourtus.gov/qp/08-00006qp.pdf, permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n81.pdf (listing the questions presented in
the case).
82. See Brian T. Kohn, Brady Behind Bars: The Prosecutor’s Disclosure Obligations Regarding
DNA in the Post-Conviction Arena, 1 CARDOZO PUB. L. POL’Y & ETHICS J. 35 (2003); Kreimer &
Rudovsky, supra note 61. Contra Zacharias, supra note 7, at 192 (“Brady and its progeny alone do
not establish a prosecutorial duty to make genetic samples available for testing or to conduct DNA
testing. Nevertheless, the DNA issue is sui generis. . . . Prosecutors’ willingness to release the
samples for testing and/or to authorize government testing therefore assumes particular
significance.”).
83. Zacharias, supra note 7, at 190 (observing that, while there is “superficial support for the

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Second, building upon the doctrinal allusions to a post-conviction
Brady obligation, the Model Rules of Professional Conduct were
recently amended to clarify that prosecutors should occasionally serve a
more active function to facilitate the release of the wrongfully convicted.
In February 2008, comment 1 to Rule 3.8 was adjusted to respond, in
part, to the wave of exonerations in the past two decades.84 This
comment now prescribes that prosecutors should take “special
precautions . . . to prevent and to rectify the conviction of innocent
persons,”85 and also alerts prosecutors to the fact that “[c]ompetent
representation of the sovereignty may require a prosecutor to undertake
some procedural and remedial measures as a matter of obligation.”86
Fortunately, amendments to the Rule reach beyond mere exhortation
in the commentary. The text of Rule 3.8 itself was expanded to impose
affirmative obligations on prosecutors in certain instances. Under the
modified Rule, when “a prosecutor knows of new, credible and material
evidence creating a reasonable likelihood that a convicted defendant did
not commit an offense of which the defendant was convicted,” that
attorney is compelled to act by “promptly disclos[ing] that evidence to
an appropriate court or authority . . . .”87 Additionally, if the original
conviction occurred within the prosecutor’s jurisdiction, he or she bears
an extra responsibility to “undertake further investigation, or make
reasonable efforts to cause an investigation, to determine whether the
defendant was convicted of an offense that the defendant did not

notion that the obligation to disclose is perpetual,” “no court has directly applied Brady to the
postconviction context, and most courts agree that Brady’s applicability is unsettled even with
respect to the period in which direct appeals are still pending”). But see id. at 190–91 (conceding
that disclosure may be required when a prosecutor obtains possession of exculpatory evidence that
directly pertains to an element of a properly filed collateral claim).
84. See supra note 46 and accompanying text (discussing the series of DNA exonerations since
1989); see also Am. Bar Ass’n, Criminal Justice Section, Report to the House of Delegates (Feb.
2008) (recommending the addition of new paragraphs (g) and (h) to Rule 3.8) (on file with the
au th o r), perman ent copy available at http://www.law. washington.edu/wlr/notes/
84washlrev37n84.pdf [hereinafter “ABA Report”]; Stephen A. Saltzburg, Changes to Model Rules
Impact Prosecutors, 23 CRIM. JUST. 1, 13 (2008) (“The additions to Rule 3.8 reflect the longstanding concern among prosecutors, defense counsel, judges, and academics about the risk that any
criminal justice system, even working at its best, may produce wrongful convictions, and the
importance of remedying such convictions in the face of important newly discovered evidence.”).
85. MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1 (2008); see also Saltzburg, supra note 84,
at 1 (discussing the amendments to comment 1 of Rule 3.8).
86. MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1.
87. Id. R. 3.8(g).

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commit.”88 In cases where that evidence rises to the level of “clear and
convincing” evidence of innocence, as opposed to a reasonable
likelihood thereof, prosecutors under Rule 3.8 must do something more:
“the prosecutor shall seek to remedy the conviction.”89 To remedy the
conviction, freshly minted comment 8 to Rule 3.8 suggests that
“[n]ecessary steps may include disclosure of the evidence to the
defendant, requesting that the court appoint counsel for an unrepresented
indigent defendant and, where appropriate, notifying the court that the
prosecutor has knowledge that the defendant did not commit the offense
of which the defendant was convicted.”90
At the risk of bursting the bubble of enthusiasm generated by these
changes, it should be noted that newly amended Rule 3.8 has no binding
effect—it is, after all, only a model rule that has yet to be adopted by a
single state.91 Moreover, the amendments may remain too vague to
operate effectively in practice.92 Regardless of Rule 3.8’s possible lack
of teeth, though, it symbolizes a critical shift in thinking about
prosecutorial ethics and criminal justice.93 For at this juncture, perhaps
88. Id.
89. Id. R. 3.8(h).
90. Id. R. 3.8 cmt. 8; see also id. R. 3.8 cmt. 9 (“A prosecutor’s independent judgment, made in
good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g)
and (h), though subsequently determined to have been erroneous, does not constitute a violation of
this Rule.”).
91. See Green & Yaroshefsky, supra note 6 (manuscript at 6) (noting that “state courts have not
yet adopted these rules”). These amendments, however, are derived from similar provisions adopted
by the New York State Bar Association. See ABA Report, supra note 84, at 1. Moreover, there is a
petition currently pending before the Wisconsin Supreme Court to enact a slightly modified version
of these amendments. See Petition, In the Matter of the Amendment of Supreme Court Rules
Chapter 20 Rules of Professional Conduct for Attorneys, No. 08-24 (Wis. 2008), available at
http://www.wicourts.gov/supreme/docs/0824petition.pdf, permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n91a.pdf. And in Colorado, the state
Supreme Court Standing Committee on the Rules of Professional Conduct approved the creation of
a subcommittee to consider whether Rules 3.8(g) and (h) should be recommended for adoption to
the Supreme Court. See Colo. Supreme Court Standing Comm. on the Rules of Prof’l Conduct,
Meeting Agenda (Aug. 21, 2008), available at http://www.courts.state.co.us/userfiles/File/
Court_Probation/Supreme_Court/Committees/Rules_of_Professional_Conduct_Committee/8.21.08
_meeting_agenda(1).pdf, permanent copy available at http://www.law.washington.edu/
wlr/notes/84washlrev37n91b.pdf.
92. See Saltzburg, supra note 84, at 13 (“Despite the widespread support for the Criminal Justice
Section recommendation, not everyone was persuaded that sections (g) and (h) provided clear
enough guidance to prosecutors.”); see also id. at 14 (addressing some of the concerns regarding the
amendments’ vagueness).
93. Indeed, it serves as a welcome signal that attorneys and scholars perceive a need for greater
regulation of prosecutorial behavior, and it is an about-face from the recent reticence to amend the
model rules accordingly. See, e.g., ABA Report, supra note 84, at 3 (“The obligations to avoid and

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for the first time ever, a wide swath of scholars, judges, and lawyers are
acutely aware of a central failing of our system: that innocent suspects
fall through the cracks and end up imprisoned. A byproduct of this
awareness is a blossoming understanding that prosecutors are uniquely
positioned—as well as morally and ethically obligated—to help rectify
these errors.94
The question then becomes the following: how should post-conviction
prosecutors actually proceed in implementing the minister-of-justice
concept and assisting in the exoneration of the innocent? Situations
involving Brady material in the post-conviction setting yield relatively
easy fixes, as Rule 3.8’s altered requirements make plain. Where
prosecutors know of credible exculpatory evidence suggesting that an
innocent person has been convicted, they should provide notice, and,
occasionally, do much more.95 But what about circumstances other than
a prosecutor’s knowledge of an inmate’s likely innocence and/or the
surfacing of Brady material after conviction?96 Might not the lessons of
the innocence movement portend that prosecutors should take
affirmative action to investigate potential wrongful convictions in their
jurisdictions, rather than respond solely after exculpatory evidence lands
in their laps? In other words, should prosecutors be proactive—not just

rectify wrongful convictions, to which the proposed provisions give expression, is the most
fundamental professional obligation of criminal prosecutors.”); Green, supra note 24, at 1574-75
(observing that the Ethics 2000 Commission that examined the Model Rules was “less inclined to
augment prosecutors’ special responsibilities” and that “the existing provisions of Rule 3.8 do not
adequately cover the full range of troubling prosecutorial conduct”). Additionally, the amendments
suggest that prosecutors who violate the new provisions may be subject to disciplinary action. See,
e.g., ABA Report, supra note 84, at 5 (“Further, it is important not simply to educate prosecutors
but to hold out the possibility of professional discipline for lawyers who intentionally ignore
persuasive evidence of an unjust conviction.”).
94. See, e.g., Green & Yaroshefsky, supra note 6 (manuscript at 43) (“As the executive branch
official best positioned to assess whether a convicted defendant is factually innocent, the prosecutor
has primary responsibility for correcting error and abdicates this responsibility when she fails to
take reasonably available measures to rectify wrongful convictions.”).
95. See Zacharias, supra note 7, at 210 (“A prosecutor who knows for a fact that a convicted
defendant is innocent should take some action. No conception of the prosecutor’s role—as an
advocate, defender of the public trust, or protector of victims—would countenance the prosecutor’s
participation in keeping a clearly innocent person incarcerated.”); see also supra notes 84–90 and
accompanying text.
96. In Bruce Green and Ellen Yaroshefsky’s excellent discussion of this issue, they define the
“key question” as “how convinced the prosecutor must be of the defendant’s innocence or how
doubtful she must be of the convicted defendant’s guilt to call for her to rectify an apparent injustice
through whatever judicial or executive process is available.” Green & Yaroshefsky, supra note 6
(manuscript at 46); see also id. (manuscript at 42–48).

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reactive—in grappling with the inevitable existence of wrongful
convictions in their jurisdictions? In my view, the answer is a resounding
and unequivocal yes.
III. THE INNOCENCE MOVEMENT AND PROSECUTORIAL
ETHICS: THE CASE FOR PROSECUTORS TAKING
GREATER STEPS TO FACILITATE THE RELEASE OF THE
INNOCENT
A.

The Merits of Prosecutorial Innocence Units

Currently, inmates seeking assistance in investigating and litigating
post-conviction claims of innocence rely greatly on the services of one
of the approximately forty nonprofit “innocence projects” nationwide.97
The precise structure of these organizations varies considerably. Many
innocence projects are affiliated with law schools and take the form of
clinics in which law students undertake the bulk of the investigative
legwork under the supervision of law faculty,98 while others are
freestanding nonprofits or linked with journalism schools.99 In addition,
some have a regional focus whereby they only agree to represent
prisoners in particular jurisdictions and/or solely handle cases involving
DNA testing.100
Despite their cosmetic differences, innocence projects share the same
core value—a commitment to exonerating the factually innocent.101
Maintaining this commitment is often expensive and time-consuming
given that projects must engage in a laborious case-screening process to
isolate meritorious cases from the bevy of requests directed their way.102
With some exceptions, innocence projects struggle to make ends meet
and their survival may depend on the benevolence of a few essential
donors and law school deans.103 Financial limitations exacerbate another
97. For a listing of innocence projects, see The Innocence Project, About Us: Other Projects,
http://www.innocenceproject.org/about/Other-Projects.php (last visited Feb. 12, 2009), permanent
copy available at http://www.law.washington.edu/wlr/notes/84washlrev37n97.pdf.
98. See Daniel S. Medwed, Actual Innocents: Considerations in Selecting Cases for a New
Innocence Project, 81 NEB. L. REV. 1097, 1098 n.3 (2003).
99. See Medwed, supra note 54, at 551 nn.289–90.
100. Medwed, supra note 98, at 1100–01.
101. Id.
102. Id.
103. Id. at 1105–06 (discussing how, considering the scarcity of resources, innocence projects
must find the best cases as efficiently as possible).

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fundamental hindrance to the success of innocence projects; nonprofit
organizations unconnected with law enforcement are not ideally
positioned to investigate innocence claims. Law students, wellintentioned and energetic as they might be, usually lack the training and
experience in conducting field investigations so often required to verify
and substantiate an innocence claim.104 Projects may try to utilize pro
bono private investigators and lawyers to do their heavy lifting,105 but it
would be unwise to rely wholly on the magnanimity of individuals
willing to provide free services.
Unlike innocence projects, prosecutors’ offices are ideally situated to
assess post-conviction innocence claims.106 First, prosecutors enjoy
largely unfettered access to files from other cases in the jurisdiction.
This is a significant benefit in analyzing, say, an innocence claim
revolving around an assertion that the chief prosecution witness lied
when that witness has testified in other matters in the city or county.
Second, prosecutors can tap into a ready, able, and conceivably willing
group of veteran investigators—the police—who are equipped with a
vast information network and their own cabinets chock full of case files.
Other advantages to the creation of prosecutorial innocence units
become clear upon reflection. Prosecutors in such units would soon
develop expertise in the area of post-conviction procedure and innocence
claims, thereby making them more efficient and effective evaluators of a
claim’s merit than generalist criminal lawyers from the trial or appellate
division.107 Moreover, achieving organizational separation between the
trial bureau and the attorneys in charge of reviewing post-conviction
petitions could minimize the impact of the status quo bias.108
Centralizing responsibility for post-conviction innocence claims could
also foster stronger relationships between individual attorneys in the unit
and lawyers associated with innocence projects because they will have
104. See generally id. (discussing the challenges innocence-project supervisors encounter in
trying to utilize students effectively).
105. Id. at 1115 (mentioning that innocence projects may benefit from referrals from attorneys in
the community as a means of finding good cases to investigate).
106. See, e.g., Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of
Federal Prosecutors, 26 FORDHAM URB. L.J. 553, 567 (1999) (“[I]n any given case it is often the
prosecutor who possesses the information that can lead to the fairest and most expeditious
decision.”).
107. See Medwed, supra note 6, at 175.
108. See Burke, supra note 69, at 525–26 (“A ‘fresh look’ by attorneys unassociated with initial
sticky charging decisions may dilute the biasing effects of selective information processing and
belief perseverance.”).

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repeated opportunities to interact and gain one another’s trust.109
Solidifying these relationships, in turn, could yield greater cooperation
in submitting innocence claims to the courts, and thus, greater faith on
the part of judges about the validity of those claims in which the defense
and the prosecution present a united front.110
Without a doubt, there are arguments militating against the formation
of internal innocence units within prosecutors’ offices. The impact of
“conformity effects” described above would remain to some extent, as
prosecutors within the unit might be reluctant to second-guess the trial
decisions of a co-equal in the office, even if located in another bureau.111
Furthermore, assignments to the innocence unit might be treated with
disdain, perceived as akin to work in the Internal Affairs Bureau of a
police department in which members of such divisions are often viewed
as “rats” principally concerned with questioning the decisions and ethics
of their colleagues.112 Conceivably, lawyers in an innocence unit could
have difficulty wresting information from suspicious peers, and might
worry about reprisals that could impair the chance for professional
advancement in the future. Political considerations could also augur
against forming such units; chief prosecutors might (rightly or wrongly)
fear that the public will view the creation of these entities as a blot on
their “tough on crime” reputations and hold it against them come
election day.113 Finally, resource limitations may render the feasibility of
innocence units impractical, especially in smaller district attorneys’
offices.114
On the whole, however, the combination of the prosecutor’s unique
obligation to serve as a minister of justice, the lessons learned by this era
of DNA exonerations, the difficulties that nonprofit innocence projects

109. See Medwed, supra note 6, at 175.
110. See supra notes 6 & 51 and accompanying text (describing how prosecutorial responses to
innocence claims can affect the courts’ impressions of their merits).
111. See supra note 77–78 and accompanying text.
112. See Medwed, supra note 6, at 176. Indeed, many prosecutors could find the prospect of these
units threatening given that their mere presence signals that individual prosecutors may lack the
ability to do justice on their own. See, e.g., David Meier, The Prosecution’s Perspective on PostConviction Relief in Light of DNA Technology and Newly Discovered Evidence, 35 NEW ENG. L.
REV. 657, 657–58 (2001) (quoting a prosecutor commenting that “I would like to think that there is
no need to establish an innocence unit or an innocence project in a prosecutor’s office. On the
contrary, ensuring that only the guilty are convicted is what a prosecutor should be doing, day in
and day out.”).
113. See supra notes 67–68 and accompanying text.
114. See Medwed, supra note 6, at 176.

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often face, and the reality that prosecutors stand in the best position to
evaluate innocence claims after trial together support the formation of
“innocence units.”115 Ideally, an in-house prosecutorial innocence unit
would both investigate claims of innocence by prisoners—whether
brought to the unit’s attention by inmates or labeled as possible wrongful
convictions by members of the unit itself—and litigate these matters.
The emergence of prosecutorial innocence units would likely lead to
more fruitful investigations and additional exonerations of the factually
innocent. And, over time, these units would enhance the legitimacy of
the criminal justice system by giving the public greater reason to believe
in the accuracy of trial results and the dedication of prosecutors to
realizing the “do justice” aspiration.116
B.

Current Innocence Unit Models

A handful of prosecutors’ offices have already created innocence
units, mainly with a focus on the issue of post-conviction DNA
testing.117 Some of these units are organized to field requests for DNA
testing from inmates and then assess the merits of the inquiry;118 others
have unilaterally initiated voluntary reviews of cases in which biological
evidence could be available for testing.119 Several prosecutorial
agencies, including ones in St. Paul, Houston, and New York City, have
succeeded in clearing innocent prisoners and assisting in their
exonerations.120 At least one office—the district attorney’s office in

115. See id. (“Housing post-conviction units with the state attorney general’s office could be an
efficient alternative to the placement of these divisions in county prosecutorial offices, and might
minimize the potential for intra-organizational resentment by creating greater distance between trial
and post-conviction prosecutors.” (internal citations omitted)).
116. See, e.g., Christopher A. Bracey, Truth and Legitimacy in the American Criminal Process,
90 J. CRIM. L. & CRIMINOLOGY 691, 693 (2000) (reviewing WILLIAM PIZZI, TRIALS WITHOUT
TRUTH (1999)) (“[T]he American trial system is fundamentally ‘weak,’ according to Professor
Pizzi, because it privileges fairness norms at the expense of ‘truth.’” (internal citation omitted)).
117. See Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35
NEW ENG. L. REV. 639, 641 (2001) (“Increasingly, progressive-minded prosecutors around the
country are setting up their own ‘innocence projects.’”); Zacharias, supra note 7, at 198–200.
Contra Meier, supra note 112, at 657.
118. See Mark Lee, The Impact of DNA Technology on the Prosecutor: Handling Motions for
Post-Conviction Relief, 35 NEW ENG. L. REV. 663, 663–67 (2001) (describing how the Suffolk
County (Boston, Mass.) District Attorney’s Office fields requests for DNA testing from inmates).
119. For examples of some of these programs, see Medwed, supra note 6, at 126 nn.3–4;
Zacharias, supra note 7, at 198–200.
120. See Medwed, supra note 6, at 126 n.3.

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Santa Clara County, California—has taken staunch measures to
exterminate any festering “conviction psychology” to the point where
employees receive awards upon uncovering innocent criminal
defendants in the jurisdiction.121 These exemplars show that the DNA
era has affected how some prosecutors’ offices conceive of and execute
their duty to serve justice. That being said, the efforts of these programs,
though laudable, fall short of fully implementing the minister-of-justice
ideal because their missions usually encompass only the narrow category
of cases in which biological evidence is available for testing.122
The Dallas County, Texas program may serve as the best model for
other prosecutorial offices to replicate in forming internal innocence
divisions. Established in July 2007 by newly elected district attorney
Craig Watkins,123 Dallas’s Conviction Integrity Unit has two primary
missions.124 First, the Conviction Integrity Unit oversees the review of
more than 400 DNA cases in conjunction with the Innocence Project of
Texas and in accordance with Texas law governing motions for forensic
testing.125 Second, the Conviction Integrity Unit considers all cases
(DNA and non-DNA) where evidence identifies different or additional
perpetrators, and is committed to investigating and litigating such
matters.126 Under the supervision of a senior deputy chief, the unit is
staffed by a full-time assistant district attorney, an investigator, and a
legal assistant,127 and coordinates with the local public defender’s office
in searching for worthwhile cases.128 Watkins seems quite proud of this

121. See Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence
by Prosecutors: Ethical and Evidentiary Issues, 76 FORDHAM L. REV. 1453, 1481 n.188 (2007);
Office of the County of Santa Clara Dist. Att’y, Innocence Project, http://www.santaclara-da.org
(follow “District Attorney’s Office Directory” hyperlink; then follow “District Attorney
Departments” hyperlink; then follow “Innocence Project” hyperlink) (last visited Feb. 12, 2009),
permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev37n121.pdf.
122. See supra note 47 and accompanying text.
123. See Ronald F. Wright & Marc L. Miller, Dead Wrong, 2008 UTAH L. REV. 89, 95 (2008)
(“While some may hope that newcomers to the prosecutor’s office like Craig Watkins will increase
chances for cooperation with the innocence movement, their hope founders upon another reality
about American prosecutors: opportunities to work with newcomers come rarely.”).
124. For an official description of the Conviction Integrity Unit, see Dallas County Dist. Att’y
Conviction Integrity Unit, http://www.dallasda.com/conviction-integrity.html (last visited Feb. 12,
2009), permanent copy available at http://www.law.washington.edu/wlr/notes/
84washlrev37n124.pdf.
125. Id.
126. Id.
127. Id.
128. See, e.g., Jennifer Emily, In First Year as Dallas County DA, Watkins Shifts Focus from

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unit, which his website touts as “the first of its kind in the United
States,”129 and his pride appears justified. Watkins’s innovation has thus
far enjoyed remarkable success in its short life, resulting in the
exoneration of at least eight inmates130 and granting requests for DNA
testing to twenty prisoners whose overtures had been rebuffed by
previous prosecutors.131
A confluence of factors, some of them unique to Dallas, apparently
converged to make Watkins’s unit thrive. Surely, Watkins’s personal
beliefs and his visceral rejection of the “conviction psychology”
constitute a major reason.132 But, on a more basic level, Dallas’s
atrocious history of wrongful convictions created a fertile political
environment in which someone like Watkins could be elected and his
idea for a post-conviction unit could bloom. Post-conviction DNA
testing has produced nineteen exonerations in Dallas since 2001, a figure
exceeding that of any other county in the nation and surpassing that of
many states.133 What is more, Watkins convinced Dallas County
commissioners early on to fund this unit by earmarking over $300,000 in
2007,134 and his efforts recently yielded another grant of more than
$450,000.135 It is one thing to devise a novel idea; it is something else to
construct one that can attract financial backing. Watkins’s recent arrival
in office also means that the “integrity” of virtually all of the convictions
Winning to Justice, DALLAS MORNING NEWS, Dec. 30, 2007, at A1, permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n128.pdf.
129. Id.
130. E-mail from Natalie Roetzel, Executive Director, Innocence Project of Texas, to Daniel S.
Medwed, Associate Professor of Law, S.J. Quinney College of Law (Nov. 18, 2008, 9:32 MST) (on
file with author), permanent copy available at http://www.law.washington.edu/wlr/notes/
84washlrev37n130.pdf (mentioning that there have been eight formal exonerations since Craig
Watkins took office, with several additional exonerations pending).
131. See, e.g., Jennifer Emily, Dallas County District Attorney: 3 More Inmate DNA Tests
Approved, DALLAS MORNING NEWS, May 24, 2008, at B11, permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n131.pdf.
132. See Emily, supra note 128, at A1.
133. See Steve McGonigle & Jennifer Emily, A Blind Faith: 18 of 19 Local Cases Overturned by
DNA Relied Heavily on Unreliable Testimony, DALLAS MORNING NEWS, Oct. 12, 2008, at 1A,
permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev37n133.pdf.
Indeed, Dallas County’s tally of DNA exonerations is higher than that of all of the other cities and
counties in Texas combined. Id. (noting that “[s]eventeen exonerations have occurred elsewhere in
Texas”).
134. See Emily, supra note 128, at A1.
135. See, e.g., Jennifer Emily, Dallas County DA’s Office Gets Grant for DNA Tests, DALLAS
M ORNING N EWS , June 6, 2008, at B2, permanent copy available at http://www.law.
washington.edu/wlr/notes/84washlrev37n135.pdf.

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his unit is examining occurred during his predecessors’ terms in office
and, therefore, discovery of error casts a pall on his political rivals and
accrues to his benefit.136 It will be interesting to see if the Conviction
Integrity Unit stands the test of time—whether it survives in the event
Watkins is re-elected and post-conviction claims of innocence relating to
trials prosecuted under his auspices inevitably arise.137 While some of
the factors leading to the formation of the Conviction Integrity Unit in
Dallas—the election of a new district attorney, the precursors’ miserable
record on innocence issues, and the county’s willingness to fund the
initiative—may not exist throughout the country,138 the experiment of
Craig Watkins serves as a beacon to guide other prosecutors amenable to
creating internal innocence units, and in the process, effectuate the
minister-of-justice ideal in the post-conviction setting.
I ultimately envision the growth of prosecutorial innocence units as a
complement to, rather than a replacement for, traditional innocence
projects. There will always be a need for organizations willing to
formally represent inmates in the event that an innocence claim enters
136. See Wright & Miller, supra note 123, at 93 (describing the bad reputation of Watkins’s
predecessor, Bill Hill, and noting that “[i]t is easier to accept scrutiny of closed cases if they were
investigated and prosecuted under your predecessor in office. This is doubly true if your predecessor
was a political opponent.”); see also Ashley McAndrew, A Day in the Life of Government Lawyers:
Karen Wise, Assistant District Attorney, Dallas, 70 TEX. B.J. 516, 517 (2007) (quoting Wakins as
saying, “Dallas district attorneys before me were more about convictions, convictions at all
cost . . . . They were less concerned with the actual crime problems affecting Dallas.”); Sylvia
Moreno, New Prosecutor Revisits Justice in Dallas, WASH. POST, Mar. 5, 2007, at A4, permanent
copy available at http://www.law.washington.edu/wlr/notes/84washlrev37n136.pdf (“Most of the
exonerations date to cases tried in the 1980s under Dallas’ legendary law-and-order district attorney,
Henry Wade.”); Emily, supra note 128 (describing 14 cases cleared through DNA testing under
Watkins).
137. See supra note 136 and accompanying text. Another prominent example of an incoming
prosecutor aggressively helping to exonerate prisoners wrongfully convicted during a predecessor’s
regime occurred in New Orleans when Eddie Jordan replaced long-time District Attorney Harry
Connick, Sr. See Medwed, supra note 6, at 161–64. One observer, a public defender, expressed
skepticism that Jordan would remain open to post-conviction innocence claims, commenting that
“Jordan is a lot more relaxed listening to criticism of old cases because they weren’t handled under
his tenure by people he hired and trained and supported. The real test will come when people from
his administration get socked with these kinds of criticisms and complaints about cases handled
under his watch . . . .” Michael Perlstein, Open to Appeal: Convicted Criminals Say DA Policy
Change Gives Them Fair Shot, TIMES-PICAYUNE (New Orleans), July 20, 2003, at National 1,
permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev37n137.pdf.
138. See Green & Yaroshefsky, supra note 6 (manuscript at 49) (“Where there is no independent
state body to investigate new exculpatory evidence, a large, urban office such as that of Dallas
County can create an independent internal unit . . . . Smaller prosecutors’ offices can pool their
resources to create a unit to investigate claims from each of their counties, or they can seek the
agreement of the state attorney general’s office to review such claims.”).

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Minister of Justice
the post-conviction litigation phase. Likewise, I do not see these units
superseding the possibility of state legislatures establishing bipartisan
“innocence commissions” with subpoena powers and ample funding as
vehicles to investigate innocence claims and refer the most meritorious
of them to the courts. Only one state, however, has adopted this type of
“innocence commission.” The North Carolina Innocence Inquiry
Commission, which was formally approved in the summer of 2006, has
license to investigate claims of innocence based on new evidence that
was unavailable at the time of trial.139 If a majority of a bipartisan
committee (composed of, among others, a judge, prosecutor, and defense
attorney) deems a case credible, three judges must review it.140 Such a
case would be reversed only upon a unanimous finding of “clear and
convincing evidence” of innocence by the panel.141
North Carolina’s initiative appears to be patterned after the United
Kingdom’s Criminal Cases Review Commission, a much-heralded body
that has facilitated the exoneration of numerous inmates since its
formation in 1995.142 Although approximately a dozen other
jurisdictions across the United States have innocence commissions, none
of these match North Carolina’s model in terms of the breadth of its
investigative authority and ability to prompt court proceedings.143 The
establishment of additional innocence commissions based on North
Carolina’s structure would be a positive development and an effective
complement to the prosecutorial innocence unit model.144
139. See, e.g., Andrea Weigl et al., Easley Signs Law Creating Innocence Panel, NEWS &
OBSERVER (Raleigh, N.C.), Aug. 4, 2006, at B5, permanent copy available at
http://www.law.washington.edu/wlr/notes/84washlrev37n139.pdf.
140. Id.
141. Id.
142. See generally Lissa Griffin, The Correction of Wrongful Convictions: A Comparative
Perspective, 16 AM. U. INT’L L. REV. 1241 (2001); David Horan, The Innocence Commission: An
Independent Review Board for Wrongful Convictions, 20 N. ILL. U. L. REV. 91 (2000).
143. See Robert C. Schehr, The Criminal Cases Review Commission as a State Strategic
Selection Mechanism, 42 AM. CRIM. L. REV. 1289, 1299, 1299 n.40 (2005) (listing the twelve
states). In contrast, virtually all of these other innocence commissions are bipartisan associations of
law-enforcement specialists, academics, retired judges, politicians, and community activists charged
not with the goal of rectifying existing miscarriages of justice but rather with conducting reviews of
previously overturned wrongful convictions, isolating the problems in those cases, and
recommending systemic changes. See, e.g., Keith A. Findley, Learning from Our Mistakes: A
Criminal Justice Commission to Study Wrongful Convictions, 38 CAL. W. L. REV. 333, 351–53
(2002) (citing the benefits of such commissions); Barry C. Scheck & Peter J. Neufeld, Toward the
Formation of “Innocence Commissions” in America, 86 JUDICATURE 98, 98–105 (2002) (same).
144. See Medwed, supra note 54, at 552–53 (discussing innocence commissions as potential
bodies for investigating innocence claims raised by prisoners during parole hearings). Professors

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CONCLUSION
This Article has examined the ethical obligations surrounding the
duty of prosecutors to remedy wrongful convictions and the competing
pressures that keep prosecutors from uniformly fulfilling this duty. To
better realize the oft-proclaimed minister-of-justice ideal, prosecutors
should play a more active role in investigating and litigating postconviction innocence claims by forming internal innocence divisions
with their own staffs and budgets. Prosecutorial innocence divisions
would serve as welcome, perhaps essential, companions to the entities
through which innocence claims are usually explored, not to mention a
concrete way in which to implement the minister-of-justice ideal in the
post-conviction arena.

Green and Yaroshefsky suggest that the creation of independent innocence commissions, such as
North Carolina’s, might be preferable to the formation of prosecutorial innocence units. See Green
& Yaroshefsky, supra note 6 (manuscript at 49) (“One question is who should investigate and
evaluate new evidence. Research on cognitive bias suggests that this responsibility should not be
entrusted to the prosecutor who secured the conviction, and ideally, should not be entrusted to that
prosecutor’s office. It would be preferable for states to adopt systems of review that, as in England,
Canada and North Carolina, entrust investigations and evaluations to independent bodies which
have internal, graduated processes for responding to new, exculpatory evidence.”).

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