The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors

That's the title of a new article by Fordham's Bruce Green and San Diego's Fred Zacharias.  In light of the recently revised Model Rule 3.8 and various scandals involving wrongful prosecutions and convictions, the article is certainly timely.  Here's the abstract:

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care to prevent the conviction of the innocent. The inquiry provides a new vehicle for thinking about the nature of the disciplinary process, the work of prosecutors, the challenge of preventing erroneous convictions and, ultimately, the complexities of prosecutorial regulation.

The Article demonstrates that it would be plausible to interpret the attorney competence rule as encompassing prosecutorial negligence and identifies various potential benefits of doing so. But the Article also identifies and analyzes significant normative and institutional objections that might be raised. The Article concludes that there are serious problems with employing the competence rule as proposed and that these problems are inherent in the use of discipline to regulate prosecutors.

This analysis suggests that the historical under-utilization of discipline in regulating prosecutors may not result exclusively from insufficient resources or a lack of will on the part of disciplinary regulators, as some have argued. The Article's illustration of the inherent limitations of the disciplinary process highlights the need for renewed attention to alternative regulatory processes. These include civil liability, which currently is foreclosed by prosecutorial immunity doctrines, and more robust internal regulation.