Tuesday, September 29, 2020
Yuri R. Linetsky (University of Alabama - School of Law) has posted A Rule 11 for Prosecutors (87 Tenn. L. Rev. 1 (2019)) on SSRN. Here is the abstract:
This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences—from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.
By enacting a rule of criminal procedure that mirrors Federal Rule of Civil Procedure 11, wrongfully accused defendants can obtain redress. At the same time, the reasoning behind prosecutorial immunity—that the fear of civil suits could have a chilling effect on prosecutors’ exercise of discretion—is undisturbed. Under this proposed rule, prosecutors could be held accountable for failing to conduct legal research or review available evidence to form a reasonable belief that the defendant’s conduct violates existing law. In cases that lack support in fact or law, the trial judge is empowered to sanction prosecutors’ frivolous conduct. Such sanctions are meant to deter future misconduct and compensate wrongfully accused defendants.