8 - Prosecution Policy and Justice Errors

Summary

The prosecutor has more control over life, liberty, and reputation than any other person in America.

— Robert H. Jackson (1940, p. 18)

Introduction

In addition to their extensive control over the lives, liberties, and reputations of violators of the law, prosecutors have substantial control over errors of justice, both the extent to which innocent people are convicted and the extent to which culpable offenders are not. They can ferret out errors made by the police by screening arrests more carefully, directing postarrest investigations to resolve conflicting sources of evidence, working more diligently with victims and witnesses to establish, precisely and accurately, pertinent events that preceded and followed the episode in question, and directing the forensic processing of key items of physical evidence to resolve ambiguities involving both incriminating and exculpatory evidence. While much of this work is initiated and managed by the police, prosecution resources are also allocated to these activities in different amounts at various stages of prosecution.

Prosecutors rarely articulate the rationale for determining how these allocations are made. It is by no means clear that the decisions in fact follow a coherent consideration of the relationships among the decisions themselves or between the policies that drive the decisions and the overarching goals of prosecution: pursuit of justice, reduction in crime, evenhandedness, efficiency, celerity, quality of life in the community, and legitimacy.