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Wednesday, February 13, 2008

Evidence And Ethics 13: Professor Raeder's See No Evil: Wrongful Convictions And The Prosecutorial Ethics Of Offering Testimony By Jailhouse Informants And Dishonest Experts

Southwestern Law School Professor Myrna Raeder's contribution to the Evidence and Ethics Symposium is her article, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts.  In the introduction, Raeder lays out the central question:  In the context of jailhouse informant and expert testimony, "[a]re prosecutors at fault for reaching out to witnesses whose testimony sounds too good to be true when it fills in the gaps that otherwise would likely derail the prosecution's case?"

Section I introduces the problem.  In attempting to get defendants convicted, prosecutors frequently must rely on the testimony of jailhouse informants, "the clearest threat to the integrity of the criminal justice system" because of their willingness to fabricate testimony in exchange for their "ticket to freedom."  At the same time, when technical or scientic evidence is involved in a case, there is a temptation for prosecutors to "expert shop," "casting a wide net before finding an expert to agree with their desired conclusion."

Section II then sets forth why prosecutorial reliance on such suspect sources of testimony has persisted and gone largely unchecked.  Raeder notes that, on the one hand, the 24/7 news cycle, the increased empahsis on victim's rights, and the "CSI effect" have increased the pressure on prosecutors to secure convictions through even questionable means.  On the other hand, much of the alleged prosecutorial misconduct with regard to these suspect sources "relates to 'activities that the [professional] codes refer to only obliquely, if at all," helping "to explain the paucity of cases in which prosecutors are disciplined."

Section III continues with this thread, reviewing the ethical obligations placed upon prosecutors by, inter alia, case law, the Model Rules, the ABA's Criminal Justice Standards on the Prosecution Function, and the U.S. Attorney's Manual.  This review again leads Raeder to the conclusion that the current rules did not satisfactorily cover "jailhouse informant" or "expert" shopping and the recommendation that "the rules or standards should be modified...." 

In Section IV, Raeder notes how "neither the constitutional framework for obtaining reversals of criminal convictions, nor any potential civil remedies provides sufficient incentives for prosecutors to be prudent when they consider employing jailhouse informants or dishonest experts."  Instead, based upon factors such as the finality doctrine and courts' restrictive readings of the Sixth Amendment in challenges to jailhouse informant testimony, "while claims  of prosecutorial misconduct are common, reverasals are not assured, even when the conduct is cleary unethical."  Raeder thus contends that "this appellate reality encourages winning at any cost, because ethicsa do not appear to affect outcomes, let alone at the polling place...."

In Section V, Raeder sets forth several suggestions for "reinvigorating the ethical approach to evidence."  With regard to confidential informants, she suggests the "stringent restrictions on the use of jailhouse informants adopted" in Los Angeles and the similarly stringent standards recently adopted by the Canadian Association of Chiefs of Police.  With regard to expert shopping, she cites to and expands upon Professor Moriarty's argument that the Model Rules should be broadened so that the prosecutor's special obligation to do justice includes the duty not to introduce unreliable information as well as false information.  Finally, Raeder argues for the creation of a self-regulatory body, whose very existence would have symbolic value.

Raeder's argument raises a lot of intriguing arguments, and, in particular, the Los Angeles and Canadian polices, of which I was unaware, seem to be something that the legal community should seriously consider extending across the country.

I asked Professor Raeder for her thoughts on the article, and she responded:

"I wrote this article because I believe our pro admissibility bias ensures that some very unreliable evidence of jailhouse informants and dishonest experts is likely to be presented at trial.  Therefore, I was attempting to create an affirmative ethical obligation on prosecutors to scrutinize this evidence before offering it for admission. It is my belief that many prosecutors would welcome self-regulation that would tend to lessen complaints that paint prosecutors as generally unethical, while focusing on the prosecutorial bad apples and pressures that currently exist to offer questionable evidence that
is likely to be admitted."

-CM 

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