Model Ethical Standards for Prosecutors Facing PostConviction Claims of Innocence

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Model Ethical Standards for Prosecutors Facing
Post-Conviction Claims of Innocence

• David M. Siegel Judith Goldberg

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Why Model Ethical Standards Are Needed

• Rights to testing by statutes or court rules will
  still be implemented in an adversarial context,
  with procedural requirements.
• Defendants will always be the initial proponents
  of new science, and will always bear the burden
  of the presumed validity of their convictions.

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Overview of Model Ethical Standards

• When Faced with a Defendants Post-Conviction
  Claim of Innocence Requesting the Application of
  New Science, the Prosecutor Shall
• Promptly Seek the Fullest Accounting of Truth
• Effect the Fullest Disclosure Possible
• Use the Most Accurate Science

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Goals of these Standards

• Acceptability to All Members of the C/J System
• Perception as Fair and Reasonable by All Members
  of C/J System and by Lay Persons
• Recognition as Desirable by Prosecutors

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Applicability of these Standards

• Post-Conviction
• Ordinary ethical standards already apply
  through direct appeal
• Claims of Actual or Factual Innocence
• Actual legally insufficient evidence of guilt
• Factual demonstrable proof of innocence
• Seeking Use of New Science
• Newly available or newly admissible

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Counterarguments to Model Standards - I

• Prosecutors Obligation to Promptly Seek the
  Fullest Accounting of Truth
• The final, valid conviction is the truth.
• Finality based upon factually inaccurate premise
  is not genuine finality.
• Thats not the Prosecutors job.
• The Prosecutors job is seeking justice rather
  than simply convictions.
• The Defendant should submit these claims to the
  adversarial process for a determination of truth.

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Counterarguments to Model Standards - II

• Prosecutors Obligation to Effect Fullest
  Disclosure Possible
• This would require permanent retention of all
  evidence and files in all cases.
• These are essential Procedural Issues.
• Who has obligation to maintain evidence and
  files?
• Where should evidence and files be maintained?
• Who can have access to evidence and files?
• How long must evidence and files be maintained?
• Liability for failure to maintain files and
  evidence?

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Counterarguments to Model Standards - III

• Prosecutors Obligation to Use Most Accurate
  Science
• Do we sacrifice legal finality on the altar of
  scientific advancement?
• Finality based upon scientifically demonstrably
  factually inaccurate premise is not genuine
  finality.
• What is most accurate as science constantly
  evolves?
• At a minimum, most accurate science means that
  which prosecutors use in current cases.
• At a maximum, most accurate science means that
  which is admissible by highest court in
  jurisdiction.

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Model Ethical Standards Would Proactively Address
Procedural Issues

• Chain of Custody
• The next defendant or real perpetrator
  argument
• The Foreign Lab argument (i.e., one in a
  foreign jurisdiction, e.g., California)
• The How do we know the defense didnt tamper
  with it argument
• Authentication
• The next defendant or real perpetrator
  argument
• The If it cant be authenticated first as it
  would be at trial, it will never be admitted, so
  its not relevant argument
• Statutes of Limitations / Time bars
• Cost / Funding
• The It will be cheaper if our lab does it
  argument
• Prevent Stalling
• The We just need more time to ensure we know
  what evidence there is argument
• Disclosure
• The ongoing investigation argument

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Why Prosecutors Benefit from Model Ethical
Standards

• Quid Pro Quo
• Full Disclosure of Experts Analysis as a Matter
  of Right
• Resource Conservation by avoiding protracted
  litigation
• Increased Public Confidence in Reliability of C/J
  System
• Increased Clarity of Prosecutors Obligations
• Reduced Opportunity for Defense Arguments

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What Model Ethical Standards Mean for Defendants

• Foregoing Procedural Protections
• Foregoing the Ability to Obscure Truth