prosecutor's duty to truth, The

INTRODUCTION

Years ago, when I became a prosecutor, I was trained to believe that you never put a defendant to trial unless you were personally convinced of his guilt. This was, as I recall, the accepted ethos in our office and, I assumed, in prosecutors' offices generally.1 I never questioned that precept. Some years later, however, I had an opportunity to test it when I prepared to go to trial in a robbery case. The defendant, a twenty-year-old black man, was accused of robbing at gunpoint a seventy-seven-year-old white man in a housing project. The complainant identified the defendant from photographs and later picked him out from a lineup containing two other persons, one of whom was a police officer known to the complainant. There was no other evidence.

In readying the case for trial, I learned that the defendant had been getting into trouble ever since he had dropped out of high school. He had been arrested several times, but the charges had been dismissed. He had acquired a reputation with the Housing Police, who frequently picked him up for questioning. He had been convicted of robbery two years earlier and had served three months in prison. Several days after he came home, the Housing Police picked him up again in connection with the present robbery. He had been in jail for the past fourteen months awaiting trial.

The day before trial, I asked the complainant to come to my office. I asked him to look at a series of about twenty photographs of similarly appearing males that I spread out on my desk. I had the investigator place two photographs of the defendant in the array. I left my office, asking the complainant to examine the photographs carefully and pick out the man who robbed him. When I returned five minutes later, he had selected a photograph of someone else; he was sure that was the person. I asked him to do it again. Again he picked out someone else. I thanked him. I explained to him that I could not prosecute the case. As I recall, he seemed to understand. My bureau chief concurred. I prepared a motion to dismiss, which the judge, expressing some reluctance, granted.2

ment" that the witness is unreliable.5 The prosecutor's ethical obligations are satisfied, according to this view, if he apprises the court or defense counsel of adverse evidence or defects in the truthfulness of his witnesses.6

this duty by reversing convictions when a prosecutor engages in conduct that undermines the search for truth.18

Part II of this Article discusses the source and nature of the prosecutor's duty to prejudge the truth. As explained in Part II, this duty is based on various legal, ethical, and practical considerations that require a prosecutor, in effect, to preempt the jury's determination by making an informal adjudication of the defendant's guilt and the credibility of witnesses.35 Part II also discusses the methodology used by a prosecutor in making this prejudgment - by examining facts skeptically, rigorously testing the hypothesis of guilt, and having the moral courage to decline prosecution when not personally convinced of the defendant's guilt.36 Finally, Part II describes how an aggressive commitment to truth, rather than an agnostic approach to truth, will create a prosecutorial culture that is more compatible with the prosecutor's role as a minister of justice.

Part Ill of the Article concludes that a prosecutor has both a negative duty to refrain from conduct that impedes the search for truth and an affirmative duty to protect and promote the search for truth. A prosecutor who proceeds with a case without being personally convinced of the defendant's guilt violates these duties and creates an unacceptable risk that an innocent person will be convicted.37

I. DUTY NOT TO IMPEDE THE TRUTH

conduct that distorted, subverted, or suppressed the truth. In Berger v. United States,39 the seminal case defining the prosecutor's legal and ethical role as a minister of justice, the Supreme Court implied that the prosecutor's duty to serve justice includes the avoidance of conduct that deliberately corrupts the truthfinding process.40 The prosecutor's conduct, both in presenting evidence and argument to the jury, was characterized by the Court as an "evil influence" that was "calculated to mislead the jury."41 The misconduct during the evidence phase included: misstating facts during cross-examination; falsely insinuating that witnesses said things they had not said; representing that witnesses made statements to him personally out of court when no proof of this was offered; pretending that a witness had said something which he had not said and persistently cross-examining him on that basis; and assuming prejudicial facts not in evidence. The prosecutor's closing argument contained remarks that were "intemperate," "undignified," and "misleading,"42 including assertions of personal knowledge, allusions to unused incriminating evidence, and ridiculing of defense counsel.43

The prosecutor's tactics in Berger are familiar examples of how a prosecutor can corrupt the fact-finding process. The following sections amplify Berger's critique. They offer a typology of conduct by prosecutors that distort, subvert, suppress, and otherwise impede the search for truth. To the extent that courts view the central function of a criminal trial as deciding the question of the defendant's factual guilt,44 the courts routinely condemn prosecutors for engaging in conduct that impedes that determination and have reversed convictions when the prosecutor's conduct sufficiently undermined the accuracy of the guilty verdict.45 On the other hand, courts have tolerated other truthdisserving conduct by prosecutors in order to protect adversarial integrity and prosecutorial discretion 46 There are also occasions when a prosecutor's duty to the truth includes an affirmative duty to assist a defendant in discovering the truth.47