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Editor: Kevin Cole
Univ. of San Diego School of Law

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Monday, April 8, 2013

Burke on Medwed on Prosecutors

Burke alafairAlafair S. Burke (Hofstra University - Maurice A. Deane School of Law) has posted Prosecution (is) Complex (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Post-conviction DNA testing has led to the exoneration of nearly three hundred defendants. As the number of exonerations grows, we are in an era where the once unthinkable is now undeniable. We convict the innocent. We imprison the innocent. We place the innocent on death row. Daniel Medwed brings this reality to life in his captivating book, Prosecution Complex, which carefully documents the myriad ways that prosecutors can contribute to wrongful convictions at every stage of a criminal case. From the charging decision to plea bargaining to trial to post-conviction, Medwed argues, prosecutors face an “ongoing schizophrenia” as they seek to balance dual roles in the criminal justice system, trying to serve both as zealous advocates for the government and as neutral ministers of justice. 



This book essay offers three lessons that can be gleaned from Medwed’s central thesis that prosecutors must struggle to balance their dual roles as advocates and ministers of justice. Two of these lessons are for prosecutors: 1) that the protection of justice means not only the protection of the innocent, but also the fostering of a fair process, and 2) that prosecutors can mitigate the possibility that they will contribute to a wrongful conviction by seeking out contrary voices that foster neutral decision-making. The third lesson, aimed at the wrongful convictions movement, is to avoid a language of fault, which has a tendency to focus reform efforts on intentional misconduct and to signal to virtuous prosecutors that they need not worry that they may contribute to a wrongful conviction. Prosecution Complex is a significant book that should be read by any scholar, lawyer, or layperson who cares about criminal justice. But its most essential audience is prosecutors themselves, who hold the key to the most feasible and important reforms in the prevention of erroneous convictions.

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