Prosecutorial Misconduct, Redux

The epidemic of prosecutorial misconduct described by Judge Kozinski of the 9th Circuit last year continues to spread across the headlines. Take, for example, the former North Carolina prosecutor, known as America’s “Deadliest DA,” who remains unrepentant for failing to disclose Brady material that contributed to the wrongful conviction of two men just released after three decades in prison (one whom was on death row) for crimes they did not commit. Such miscarriages of justice by its putative ministers make it all too easy to assume that every act of prosecutorial misconduct reveals an intentional effort to subterfuge the judicial process.

The psychological reality, however, tells a very different story. As scholars such as Alafair Burke, Keith Findley & Barbara O’Brien, Dan Simon, Dan Medwed, and others have taught us over the years, much of the explanation for misconduct is not that prosecutors deliberately seek to sidestep their ethical and constitutional duties, but rather that they are subject to the influences of various psychological phenomena — such as conformation bias and related tendencies — that make it too easy to engage in a biased assessment and assimilation of information. The result, known by the well-coined phrase “Tunnel Vision,” can cause a prosecutor to marshal evidence relentlessly towards a defendant’s guilt, while simultaneously failing to seek and properly assess evidence of possible innocence.

A powerful reminder of these cognitive distortions is a new article by Mary Bowman, Mitigating Foul Blows (h/t LEF), soon to be published in the Georgia Law Review. Professor Bowman’s work, well worth the read, weaves the research from cognitive science into a rich description of how various actors in the judicial drama – prosecutors, jurors, and appellate judges alike – are influenced by a variety of cognitive biases that contribute to prosecutorial misconduct during the trial phase of a case.

For those of us who study how behavioral science illuminates ethical lapses, we are well served to recall the impressive body of work explaining what is missing often from the headlines: prosecutorial error is frequently not the result of a caricatured, venal government lawyer; rather, much of the blame rests with the all-too-human tendencies that we all possess.