« Another round of highlights from Marijuana Law, Policy and Reform | Main | Rooting for acquitted conduct petition grant from SCOTUS long conference »

September 29, 2014

"Mitigating Foul Blows"

The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions.  Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error.  Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.  This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize.  As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases.  These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.

September 29, 2014 at 08:50 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Mitigating Foul Blows":


Something has to be done about the protection of unprofessional conduct of prosecutors by the Supreme Court. They have granted prosecutors absolute immunities even in cases of intentional torts by both prosecutors and by the agents of the prosecution, the police. Prosecutors should be held accountable for police misconduct under agency principles.

First, the record of performance is atrocious. If any other enterprise had such a record, they would get shut down and arrested, as threats to public safety. They allow 90% of FBI Index felonies to go unanswered. These are real crimes, and do not even include drug dealing. Then when they have a guy, there is a very good chance they have the wrong guy. Tort liability would certainly help them to improve performance. It should apply to both false prosecutions and to negligent discretion to not prosecute a crime. But for the failure to rposecute the criminal for burglary, he would not have killed my daughter from prison. They should be responsble for all violent crimes after the third violent one.

Next, liability would end the justification for violence against them in formal logic. The contrapositve of a true assertion is always true. All bats are mammals (If A then B is true). If an animal is not a mammal, he is not a bat (If not B, then not A is true). If anyone believes that tort liability is a substitute for endless violent vendettas, then tort immunity justifies endless violent vendettas.

Lastly, their immunity is just unfair and violates Equal Protection Clause rights of the victim of prosecutorial carelessness.

Such liability may a good starting point for legal reform not requiring revolutionary eradication of the entire hierarchy of tortfeasing lawyers.

Bill Otis argued that we privilege government to carry out crimes and torts for our benefit. I agreed. Only government may kidnap and hold in a cage criminals. But that is after due process. Nor is there a privilege to kidnap the wrong guy.

Posted by: Supremacy Claus | Sep 29, 2014 11:00:31 AM

personally I think the second amendment argues the exact opposite. These criminal screw-ups have no immunity from any American.

There is no such thing as "harmless error" when a conflict occurs between the state and a citizen.

Posted by: rodsmith | Sep 29, 2014 4:10:06 PM

… These criminal screw-ups have no immunity from any American.
▲ Posted by: rodsmith | Sep 29, 2014 4:10:06 PM ▲

Nor immunity from CO , compound cross bows , curare , ricin (Georgi Markov - 1978); albeit inappropriate use may be contra various statutes and case law•

It has been said that Dred Scott was overruled with the use of force/violence•

Posted by: Docile Jim Brady @Columbus, OH | Sep 30, 2014 6:30:16 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB