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iii

PREFACE
CRIMINAL LAW 2.0
HON. ALEX KOZINSKI1
I
Although we pretend otherwise, much of what we do in the law is guesswork. For
example, we like to boast that our criminal justice system is heavily tilted in favor of
criminal defendants because we’d rather that ten guilty men go free than an innocent
man be convicted.2 There is reason to doubt it, because very few criminal defendants
actually go free after trial.3 Does this mean that many guilty men are never charged
because the prosecution is daunted by its heavy burden of proof? Or is it because
jurors almost always start with a strong presumption that someone wouldn’t be
charged with a crime unless the police and the prosecutor were firmly convinced of
his guilt? We tell ourselves and the public that it’s the former and not the latter, but
we have no way of knowing. They say that any prosecutor worth his salt can get a
grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a
petit jury to convict a eunuch of rape.
The “ten guilty men” aphorism is just one of many tropes we assimilate long
before we become lawyers. How many of us, the author included, were inspired to go
to law school after watching Juror #8 turn his colleagues around by sheer force of
reason and careful dissection of the evidence?4 “If that’s what the law’s about, then I
want to be a lawyer!” I thought to myself. But is it? We know very little about this because
very few judges, lawyers and law professors have spent significant time as jurors.5 In
fact, much of the so-called wisdom that has been handed down to us about the
workings of the legal system, and the criminal process in particular, has been undermined
by experience, legal scholarship and common sense. Here are just a few examples:
1. Eyewitnesses are highly reliable. This belief is so much part of our culture that
one often hears talk of a “mere” circumstantial case as contrasted to a solid case
based on eyewitness testimony. In fact, research shows that eyewitness identifications
are highly unreliable,6 especially where the witness and the perpetrator are of
different races.7 Eyewitness reliability is further compromised when the identification
occurs under the stress of a violent crime, an accident or catastrophic event—which

1. The author is a judge on the Ninth Circuit. He wishes to acknowledge the extraordinary help
provided by his law clerk, Joanna Zhang. © 2015, Alex Kozinski.
2. Actually, as Sasha Volokh points out, the number of guilty men we are willing to free to save an
innocent one is somewhat indeterminate. See Alexander “Sasha” Volokh, n Guilty Men, 146 U. PA. L. REV.
173, 187-92 (1997).
3. According to the most recent United States Attorneys’ Annual Statistical Report, out of the 3424
federal criminal cases that went to trial in 2013, only 228, or about 6.7 percent, resulted in acquittals. See
Dep’t of Justice, U.S. Attorneys’ Annual Statistical Report: Fiscal Year 2013, at 51-56, Tables 2 & 2A
(Sept. 22, 2014), available at http://www.justice.gov/sites/default/files/usao/legacy/2014/09/22/13statrpt.pdf.
4. 12 ANGRY MEN (United Artists 1956).
5. I’ve done it twice, and I can’t say I know much more about the process. One case was so clear-cut
that only one verdict was possible. The other one was closer and resulted in a hung jury, but doubtless
would have resulted in a swift conviction but for my participation.
6. See Roger B. Handberg, Expert Testimony on Eyewitness Identification: A New Pair of Glasses for
the Jury, 32 AM. CRIM. L. REV. 1013, 1018-22 (1995).
7. See John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM. J.
CRIM. L. 207, 211-15 (2001).

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44 GEO. L.J. ANN. REV. CRIM. PROC (2015)

pretty much covers all situations where identity is in dispute at trial.8 In fact,
mistaken eyewitness testimony was a factor in more than a third of wrongful
conviction cases.9 Yet, courts have been slow in allowing defendants to present expert
evidence on the fallibility of eyewitnesses; many courts still don’t allow it.10 Few, if
any, courts instruct juries on the pitfalls of eyewitness identification or caution them
to be skeptical of eyewitness testimony.
2. Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by
police using fingerprinting equipment and proper technique may be a relatively
simple process,11 but latent prints left in the field are often smudged and incomplete,
and the identification process becomes more art than science. When tested by rigorous
scientific methods, fingerprint examiners turn out to have a significant error rate.12
Perhaps the best-known example of such an error occurred in 2004 when the FBI
announced that a latent print found on a plastic bag near a Madrid terrorist bombing
was “a 100 percent match” to Oregon attorney Brandon Mayfield.13 The FBI eventually conceded error when Spanish investigators linked the print to someone else.
3. Other types of forensic evidence are scientifically proven and therefore
infallible. With the exception of DNA evidence (which has its own issues), what goes
for fingerprints goes double and triple for other types of forensic evidence:
Spectrographic voice identification error rates are as high as 63%, depending on the
type of voice sample tested. Handwriting error rates average around 40% and
8. See Thomas Dillickrath, Expert Testimony on Eyewitness Identification: Admissibility and Alternatives, 55 U. MIAMI L. REV. 1059, 1063-64 (2001).
9. See The National Registry of Exonerations, % Exonerations by Contributing Factor (last visited
Apr. 7, 2015), http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.
aspx (mistaken eyewitness identifications were a contributing factor in 34 percent of all exonerations
recorded in the database).
10. The Seventh and Eleventh Circuits have “consistently looked unfavorably upon such testimony,”
United States v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997), with the Eleventh Circuit going as far as to
hold that eyewitness expert testimony is per se inadmissible. See United States v. Holloway, 971 F.2d
675, 679 (11th Cir. 1992); United States v. Hall, 165 F.3d 1095, 1104 (7th Cir. 1999) (noting a
presumption against admission of eyewitness expert testimony). The Second Circuit takes a similarly
skeptical approach, holding that eyewitness expert testimony likely usurps the jury’s role of determining
witness credibility. See United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). The Third and Sixth
Circuits, by contrast, have welcomed the admission of eyewitness expert testimony. See United States v.
Smith, 736 F.2d 1103, 1107 (6th Cir. 1984); United States v. Stevens, 935 F.2d 1380, 1397-98 (3d Cir.
1991); see also United States v. Hines, 55 F. Supp. 2d 62, 72 (D. Mass. 1999) (“[w]hile jurors may well
be confident that they can draw the appropriate inferences about eyewitness identification directly from
their life experiences, their confidence may be misplaced, especially where cross-racial identification is
concerned”). And don’t even get me started on the state courts—they’re all over the place.
11. Then, again, maybe not. When the FBI Special Agent came around to take fingerprints for my
background check, he brought a fingerprint kit and 10 cards, all of which he insisted on filling—about
120 prints in all. “Why so many?” I asked. “Because sometimes they don’t come out so clear so we like
to make backups.” He carefully rolled his ten dozen prints and left . . . then came back a week later with
10 more cards: None of the first set were any good. True story.
12. “[F]orensic fingerprint identification almost never deals in whole fingerprints. Rather, technicians
use ‘latent’ fingerprints—invisible impressions that they ‘develop’ using a powder or a chemical
developing agent. Latent prints are usually fragmentary, blurred, overlapping, and otherwise distorted.
The challenge is to match the latent print to a pristine inked (or, these days, optically scanned) print taken
under ideal conditions at the police station.” Simon Cole, The Myth of Fingerprints: A Forensic Science
Stands Trial, 10 LINGUA FRANCA, no. 8, 2000; see Simon A. Cole, More Than Zero: Accounting for Error
in Latent Fingerprint Identification, 95 J. CRIM. L. & CRIMINOLOGY 985, 994-1029 (2005); Michael J. Saks
& Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 SCI. 892, 895
(2005); Andy Newman, Fingerprinting’s Reliability Draws Growing Court Challenges, N.Y. TIMES (Apr.
7, 2001), http://www.nytimes.com/2001/04/07/us/fingerprinting-s-reliability-draws-growing-courtchallenges.html. In United States v. Llera Piaza, 188 F. Supp. 2d 549, 564 (E.D. Pa. 2002), for example,
Judge Louis Pollack rejected fingerprint identification expert testimony after concluding that the field of
fingerprint identification has failed to systematically test its underlying assumptions and claims of expertise.
13. Saks & Koehler, supra n.12, at 894.

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v

sometimes approach 100%. False-positive error rates for bite marks run as high as
64%. Those for microscopic hair comparisons are about 12% (using results of
mitochondrial DNA testing as the criterion).14

Other fields of forensic expertise, long accepted by the courts as largely infallible,
such as bloodstain pattern identification, foot and tire print identification and ballistics have been the subject of considerable doubt.15 Judge Nancy Gertner, for example,
has expressed skepticism about admitting expert testimony on handwriting,16 canines,17 ballistics18 and arson.19 She has lamented that while “the Daubert-Kumho
standard [for admitting expert witness testimony] does not require the illusory
perfection of a television show (CSI, this wasn’t), when liberty hangs in the balance—
and, in the case of the defendants facing the death penalty, life itself—the standards
should be higher . . . than [those that] have been imposed across the country.”20
Some fields of forensic expertise are built on nothing but guesswork and false
common sense.21 Many defendants have been convicted and spent countless years in
prison based on evidence by arson experts who were later shown to be little better
than witch doctors.22 Cameron Todd Willingham may have lost his life over it.23
14. Id. at 895 (internal citations omitted); see United States v. Starzecpyzel, 880 F. Supp. 1027, 1038
(S.D.N.Y. 1995) (McKenna, J.) (“the testimony at the Daubert hearing firmly established that forensic
document examination, despite the existence of a certification program, professional journals and other
trappings of science, cannot, after Daubert, be regarded as scientific . . . knowledge”) (internal quotation
marks omitted); see also Radley Balko, How the Flawed “Science” of Bite Mark Analysis Has Sent
Innocent People to Prison, WASH. POST (Feb. 13, 2015), http://www.washingtonpost.com/news/the-watch/
wp/2015/02/13/how-the-flawed-science-of-bite-mark-analysis-has-sent-innocent-people-to-jail/ (4-part series criticizing the failure of courts to accept the consensus in the scientific community that “bite mark
matching isn’t reliable and has no scientific foundation for its underlying premises, and that until and
unless further testing indicates otherwise, it shouldn’t be used in the courtroom”).
15. See TERRY LABER ET AL., NATIONAL INSTITUTE OF JUSTICE, FINAL REPORT, RELIABILITY ASSESSMENT OF
CURRENT METHODS IN BLOODSTAIN PATTERN ANALYSIS (2014), available at https://www.ncjrs.gov/pdffiles1/nij/
grants/247180.pdf; Yaron Shor & Sarena Weisner, A Survey on the Conclusions Drawn on the Same
Footwear Marks Obtained in Actual Cases by Several Experts Throughout the World, 44 J. FORENSIC SCI.
380, 383 (1999); COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD, NATIONAL RESEARCH COUNCIL 154-55 (2009),
available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (noting the unknown, and yet to be
sufficiently tested, reliability of ballistics analysis).
16. Hines, 55 F. Supp. 2d at 69-71 (ruling that a handwriting expert may not give an ultimate
conclusion on the author of a robbery note, and remarking that “[t]here is no academic field known as
handwriting analysis,” as “[t]his is a ‘field’ that has little efficacy outside of a courtroom”).
17. United States v. Hebshie, 754 F. Supp. 2d 89, 119 (D. Mass. 2010) (“There are no peer reviewed
standardized methods of training detective dogs; their reliability is in fact highly variable”) (citing Michael
E. Kurz et al., Effect of Background Interference on Accelerant by Canines, 41 J. FORENSIC SCI. 868 (1996)).
18. United States v. Green, 405 F. Supp. 2d 104, 107-08 (D. Mass. 2005) (finding “serious deficiencies” in the ballistics expert’s proffered testimony, including the expert’s failure to “cite any reliable
report describing his error rates, that of his laboratory, or indeed, that of the field”).
19. Hebshie, 754 F. Supp. at 114-15 (summarizing recent “public and professional literature reflect[ing] increasing scrutiny of arson evidence by experts in both the scientific and legal fields as well as by
the public at large,” and expressing concerns about arson expert testimony rooted in “bad science” and
“unreliable methodologies”).
20. Green, 405 F. Supp. 2d at 109.
21. “[S]ubjective, pattern-based forensic techniques—like hair and bite-mark comparisons” leave
much room for error. See Spencer S. Hsu, FBI Admits Flaws in Hair Analysis Over Decades, WASH. POST
(Apr. 18, 2015), http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearlyall-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html; Roger Koppl, CSI for Real: How to Improve Forensic Science, REASON FOUND., Dec. 2007, at 3-18 (detailing
inadequacies in the practice of forensic science).
22. See Paul Bieber, Anatomy of a Wrongful Arson Conviction, THE ARSON PROJECT, http://thearsonproject.
org/charm/wp-content/uploads/2014/08/wrongful_convictions.pdf (since 1989, 29 exonerations have involved arson convictions).
23. See Robert Tanner, Science Casts Doubt on Arson Convictions, WASH. POST (Dec. 9, 2006),
http://www.washingtonpost.com/wp-dyn/content/article/2006/12/09/AR2006120900357.html; David Grann,

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4. DNA evidence is infallible. This is true to a point. DNA comparison, when
properly conducted by an honest, trained professional will invariably reach the
correct result. But the integrity of the result depends on a variety of factors that are,
unfortunately, not nearly so foolproof: the evidence must be gathered and preserved
so as to avoid contamination; the testing itself must be conducted so that the two
samples being compared do not contaminate each other; the examiner must be
competent and honest.24 As numerous scandals involving DNA testing labs have
shown,25 these conditions cannot be taken for granted, and DNA evidence is only as
good as the weakest link in the chain.
5. Human memories are reliable. Much of what we do in the courtroom relies on
human memory. When a witness is asked to testify about past events, the accuracy of
his account depends not only on his initial perception, but on the way the memories
are recorded, stored and retrieved. For a very long time, it was believed that stored
memories were much like video tape or film—an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be
distorted or embellished.
Science now tells us that this view of human memory is fundamentally flawed. The
mind not only distorts and embellishes memories, but a variety of external factors can
affect how memories are retrieved and described. In an early study by cognitive
psychologist Elizabeth Loftus, people were shown videos of car accidents and then
questioned about what they saw.26 The group asked how fast the cars were going
when they “smashed” into each other estimated 6.5 mph faster than the group asked
how fast the cars were going when they “hit” each other.27 A week later, almost a
third of those who were asked about the “smash” recalled seeing broken glass, even
though there was none.28

Trial by Fire, NEW YORKER (Sept. 7, 2009), http://www.newyorker.com/magazine/2009/09/07/trial-by-fire.
24. The DNA scandals continue to this day. See Jaxon Van Derbeken, DNA Lab Irregularities May
Endanger Hundreds of SFPD Cases, SF GATE (Mar. 28, 2015), http://www.sfgate.com/crime/article/DNAlab-irregularities-may-endanger-hundreds-of-6165643.php (noting that the San Francisco Police Department is facing accusations that its DNA crime lab technicians have been “fill[ing] in the gaps of
poor-quality, incomplete genetic evidence” and passing them off as “definitive test results to the state’s
offender tracking database, something that would not have been allowed with the original, lower-quality
DNA evidence”); see also Kimberly C. Boies, Misuse of DNA Evidence is Not Always a “Harmless
Error”: DNA Evidence, Prosecutorial Misconduct, and Wrongful Conviction, 17 TEX. WESLEYAN L. REV.
403, 414-16 (2011); Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate
Crime Labs, 86 N.C. L. REV. 172-95 (2007).
25. See Stuart Taylor Jr., Opening Argument–Innocents in Prison, NAT’L J. (Aug. 4, 2007), http://www.
nationaljournal.com/magazine/opening-argument-innocents-in-prison-20070804; Mark Hansen, Crime Labs
Under the Microscope After a String of Shoddy, Suspect and Fraudulent Results, ABA J. (Sep. 1, 2013),
http://www.abajournal.com/magazine/article/crime_labs_under_the_microscope_after_a_string_of_
shoddy_suspect_and_fraudu/; Adam Liptak & Ralph Blumenthal, New Doubt Cast on Testing in Houston
Police Crime Lab, N.Y. TIMES (Aug. 5, 2004), http://www.nytimes.com/2004/08/05/us/new-doubt-cast-ontesting-in-houston-police-crime-lab.html; Belinda Luscombe, When The Evidence Lies, TIME MAG. (May
13, 2001), http://content.time.com/time/magazine/article/0,9171,109625,00.html.
26. See Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example
of the Interaction Between Language and Memory, 13 J. VERBAL LEARNING & VERBAL BEHAV. 585-89
(1974), available at https://webfiles.uci.edu/eloftus/LoftusPalmer74.pdf.
27. Id. at 586, Table 1.
28. Id. at 587, Table 2. Professor Loftus has shown it is even possible to manufacture false memories.
See, e.g., Elizabeth F. Loftus & Jacqueline E. Pickrell, The Formation of False Memories, 25 PSYCHIATRIC
ANNALS 720-25 (1995), https://webfiles.uci.edu/eloftus/Loftus_Pickrell_PA_95.pdf. For example, she
gave students each a packet describing three real childhood memories and a false one, and told the
students that all four memories were real and took place with a close family member. In follow-up
interviews asking the students to describe their memories, 7 of 24 students remembered the false event in
their packet and some added their own details to that false memory. Id. at 722. Loftus was also able to
convince participants in another experiment that they’d experienced traumatic events that never hap-

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vii

This finding has troubling implications for criminal trials where witnesses are
questioned long and hard by police and prosecutors before the defense gets to do
so—if ever. There is thus plenty of opportunity to shape and augment a witness’s
memory to bring it into line with the prosecutor’s theory of what happened. Yet with
rare exceptions, courts do not permit expert testimony on human memory.29 For
example, the district judge in the Scooter Libby case denied a defense motion for a
memory expert, even though the key issue at trial was whose recollection of a
4-year-old telephone conversation should be believed.30 At least one member of the
jury that convicted Libby lamented the lack of expert testimony on the subject.31 And
a key witness in that case recently suggested in her memoirs that her memory may
have been distorted by the prosecutor’s crafty questioning.32
Given the malleability of human memory, it should come as no surprise that many
wrongful convictions have been the result of faulty witness memories, often manipulated by the police or the prosecution.33
6. Confessions are infallible because innocent people never confess. We now
know that this is not true. Innocent people do confess with surprising regularity.
Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the
ordeal, emotional and financial exhaustion, family considerations and the youth or
feeble-mindedness of the suspect can result in remarkably detailed confessions that
are later shown to be utterly false.34
pened, such as witnessing drug busts and breaking windows with their hands. See Elizabeth F. Loftus,
Illusions of Memory, 142 PROCEEDINGS OF THE AM. PHIL. SOC., 60-73 (1998). Judge Mark Bennett provides
a comprehensive overview of the existing cognitive psychological research on memory. See Mark W.
Bennett, Unspringing The Witness Memory and Demeanor Trap: What Every Judge And Juror Needs to
Know About Cognitive Psychology And Witness Credibility, AM. U. L. REV. (forthcoming 2015), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_idϭ2581650.
29. See, e.g., United States v. Affleck, 776 F.2d 1451, 1458 (10th Cir. 1985) (“Specialized testimony
explaining memory . . . is improper. The average person is able to understand that people forget; thus, a
faulty memory is a matter for cross-examination.”). Testimony on memory has been admitted in limited
circumstances, such as in cases involving mistaken eyewitness identifications, see supra n.10, and
repressed memory caused by stress or trauma, see Isely v. Capuchin Province, 877 F. Supp. 1055, 1064,
1066 (E.D. Mich. 1995) (admitting expert testimony on “repressed memory, its validity and reliability,
and whether or not [the plaintiff] has, in fact, experienced repressed memory and/or post-traumatic stress
disorder”).
30. United States v. Libby, 461 F. Supp. 2d 3, 16 (D.D.C. 2006).
31. See Peter Berkowitz, The False Evidence Against Scooter Libby, WALL ST. J. (Apr. 6, 2015),
http://www.wsj.com/articles/the-false-evidence-against-scooter-libby-1428365673.
32. See JUDITH MILLER, THE STORY: A REPORTER’S JOURNEY (2015); see infra n.113.
33. See infra nn.51-52 and accompanying text (discussing how a 12-year-old boy accused the wrong
man of a murder after the police fed the boy details of the crime); The National Registry of Exonerations,
George Franklin, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseidϭ3221
(George Franklin was convicted on the basis of his daughter’s testimony—20 years after the crime took
place—that she had seen him commit the murder. He was released after it was revealed that the daughter
had recalled the memory through hypnosis.); Jim Dwyer, Witness Accounts in Midtown Hammer Attack
Show the Power of False Memory, N.Y. TIMES (May 14, 2015), http://www.nytimes.com/2015/05/15/
nyregion/witness-accounts-in-midtown-hammer-attack-show-the-power-of-false-memory.html?_rϭ0.
34. One such instance took place in Lake County, Illinois, where local police interrogated Juan Rivera
Jr. for 4 straight days until he suffered a psychological breakdown and confessed to sexually assaulting
and killing a young girl. Rivera spent 20 years in prison until DNA evidence exonerated him in 2012. See
Dan Hinkel, Wrongful Convictions: Exonerated Inmate Wins Early Round In Suit Against Lake County
Officials, CHI. TRIB. (Oct. 14, 2013), http://articles.chicagotribune.com/2013-10-14/news/ct-met-juan-riveralawsuit-win-20131013_1_wrongful-convictions-dna-evidence-dna-exonerations; see also Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1052-57 (2010); Jed S. Rakoff, Why
Innocent People Plead Guilty, N.Y. REV. OF BOOKS (Nov. 20, 2014), http://www.nybooks.com/articles/
archives/2014/nov/20/why-innocent-people-plead-guilty/ (citing criminologists’ estimation that between
2 and 8 percent of convicted felons are innocent people who pleaded guilty, and noting that “young,
unintelligent, or risk-averse defendants will often provide false confessions just because they cannot ‘take
the heat’ of an interrogation”); Adam Cohen, Why Innocent Men Make False Confessions, TIME MAG.

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7. Juries follow instructions. This is a presumption—actually more of a guess—
that we’ve elevated to a rule of law.35 It is, of course, necessary that we do so because
it links the jury’s fact-finding process to the law. In fact, however, we know very little
about what juries actually do when they decide cases.36 Do they consider the
instructions at all? Do they consider all of the instructions or focus on only some? Do
they understand the instructions or are they confused? We don’t really know. We get
occasional glimpses into the operations of juries when they send out questions or
someone discloses juror misconduct, and even then the information we get is limited.
But we have no convincing reason to believe that jury instructions in fact constrain
jury behavior in all or even most cases.37 And, because the information we get from
inside the jury room is so limited and sporadic, experience does little to improve our
knowledge. Looking at 100 black boxes is no more informative than looking at one.
8. Prosecutors play fair. The Supreme Court has told us in no uncertain terms that
a prosecutor’s duty is to do justice, not merely to obtain a conviction.38 It has also
laid down some specific rules about how prosecutors, and the people who work for
them, must behave—principal among them that the prosecution turn over to the
defense exculpatory evidence in the possession of the prosecution and the police.39
There is reason to doubt that prosecutors comply with these obligations fully. The
U.S. Justice Department, for example, takes the position that exculpatory evidence
must be produced only if it is material.40 This puts prosecutors in the position of
deciding whether tidbits that could be helpful to the defense are significant enough
that a reviewing court will find it to be material, which runs contrary to the
philosophy of the Brady/Giglio line of cases and increases the risk that highly
exculpatory evidence will be suppressed. Beyond that, we have what I have described
elsewhere as an “epidemic of Brady violations abroad in the land,”41 a phrase that has
caused much controversy but brought about little change in the way prosecutors

(Feb. 11, 2013), http://ideas.time.com/2013/02/11/why-innocent-men-make-false-confessions/; Shankar
Vedantam, Confessions Not Always Clad in Iron, WASH. POST (Oct. 1, 2007), http://www.washingtonpost.
com/wp-dyn/content/article/2007/09/30/AR2007093001326.html.
35. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions.”); Richardson v. Marsh, 481 U.S. 200, 211 (1987).
36. See David Alan Sklansky, Evidentiary Instructions and the Jury as Other, 65 STAN. L. REV. 407
(2013).
37. See id.; Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (“The
naive assumption that prejudicial effects can be overcome by instructions to the jury . . . , all practicing
lawyers know to be unmitigated fiction.”).
38. See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the
representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.”).
39. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to guilt or
to punishment”); United States v. Giglio, 405 U.S. 150, 154 (1972) (the Brady rule includes evidence that
could be used to impeach a witness); see also Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) (extending
the state’s obligation under Brady to evidence in the possession of the police).
40. See, e.g., United States Attorneys’ Manual, Chapter 9-5.000, ISSUES RELATED TO TRIALS AND OTHER
C OURT P ROCEEDINGS , http://www.justice.gov/usam/usam-9-5000-issues-related-trials-and-other-courtproceedings.
41. United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, J., dissenting from denial of
rehearing en banc); see People v. Velasco-Palacios, F068833, 2015 WL 782632 (Cal. Ct. App. Feb. 24,
2015) (noting that a prosecutor inserted a false confession into the transcript of the defendant’s police
interrogation); Denis Slattery, Exclusive: Bronx Prosecutor Bashed and Barred from Courtroom for
Misconduct, N.Y. DAILY NEWS (Apr. 4, 2014), http://www.nydailynews.com/new-york/bronx/bronxprosecutor-barred-courtroom-article-1.1746238 (noting that a Bronx prosecutor failed to present evidence
that would have freed a man held at Rikers Island on bogus rape charges).

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ix

operate in the United States.42
9. The prosecution is at a substantial disadvantage because it must prove its
case beyond a reasonable doubt. Juries are routinely instructed that the defendant is
presumed innocent and the prosecution must prove guilt beyond a reasonable doubt,
but we don’t really know whether either of these instructions has an effect on the
average juror. Do jurors understand the concept of a presumption? If so, do they
understand how a presumption is supposed to operate? Do they assume that the
presumption remains in place until it is overcome by persuasive evidence or do they
believe it disappears as soon as any actual evidence is presented? We don’t really know.
Nor do we know whether juries really draw a distinction between proof by a
preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room. My own experience
as a juror certainly did nothing to convince me that my fellow jurors understood and
appreciated the difference. The issue, rather, seemed to be quite simply: Am I
convinced that the defendant is guilty?
Even more troubling are doubts raised by psychological research showing that
“whoever makes the first assertion about something has a large advantage over
everyone who denies it later.”43 The tendency is more pronounced for older people
than for younger ones, and increases the longer the time-lapse between assertion and
denial. So is it better to stand mute rather than deny an accusation? Apparently not,
because “when accusations or assertions are met with silence, they are more likely to
feel true.”44
To the extent this psychological research is applicable to trials, it tends to refute the
notion that the prosecution pulls the heavy oar in criminal cases. We believe that it
does because we assume juries go about deciding cases by accurately remembering
all the testimony and weighing each piece of evidence in a linear fashion, selecting
which to believe based on assessment of its credibility or plausibility. The reality may
be quite different. It may be that jurors start forming a mental picture of the events in
question as soon as they first hear about them from the prosecution witnesses.
Later-introduced evidence, even if pointing in the opposite direction, may not be
capable of fundamentally altering that picture and may, in fact, reinforce it.45 And the
effect may be worse the longer the prosecution’s case lasts and, thus, the longer it
takes to bring the contrary evidence before the jury. Trials in general, and longer trials

42. See CENTER FOR PROSECUTOR INTEGRITY, AN EPIDEMIC OF PROSECUTOR MISCONDUCT, WHITE PAPER (Dec.
2013), available at http://www.prosecutorintegrity.org/wp-content/uploads/EpidemicofProsecutorMisconduct.pdf.
43. Shankar Vedantam, Persistence of Myths Could Alter Public Policy Approach, WASH. POST (Sept. 4,
2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/09/03/AR2007090300933.html (discussing the results of a 2007 study by psychologist Norbert Schwarz); see Norbert Schwarz et al.,
Metacognitive Experiences and the Intricacies of Setting People Straight: Implications for Debiasing and
Public Information Campaigns, 39 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 127, 152 (2007) (“[o]nce a
statement is accepted as true, people are likely to attribute it to a credible source—which, ironically, may
often be the source that attempted to discredit it—lending the statement additional credibility when
conveyed to others”) (citation omitted).
44. Vedantam, supra n.43 (quoting the statement of Peter Kim, an organizational psychologist who
published a study in the Journal of Applied Psychology); see Donald L. Ferrin et al., Silence Speaks
Volumes: The Effectiveness of Reticence in Comparison to Apology and Denial for Responding to
Integrity- and Competence-Based Trust Violations, 92(4) J. APPLIED PSYCHOL. 893-908 (2007).
45. See Norbert Schwarz et al., Metacognitive Experiences and the Intricacies of Setting People
Straight: Implications for Debiasing and Public Information Campaigns, 39 ADVANCES IN EXPERIMENTAL
SOC. PSYCHOL. 127, 152 (2007); Eliot G. Disner, Some Thoughts About Opening Statements: Another
Opening, Another Show, PRAC. LITIGATOR, Jan. 2004, at 61 (“there is substantial evidence that juries
normally make up their minds long before closing argument”).

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44 GEO. L.J. ANN. REV. CRIM. PROC (2015)

in particular, may be heavily loaded in favor of whichever party gets to present its
case first—the prosecution in a criminal case and the plaintiff in a civil case. If this is
so, it substantially undermines the notion that we seldom convict an innocent man
because guilt must be proven to a sufficient certainty. It may well be that, contrary to
instructions, and contrary to their own best intentions, jurors are persuaded of
whatever version of events is first presented to them and change their minds only if
they are given very strong reasons to the contrary.
10. Police are objective in their investigations. In many ways, this is the bedrock
assumption of our criminal justice process. Police investigators have vast discretion
about what leads to pursue, which witnesses to interview, what forensic tests to
conduct and countless other aspects of the investigation. Police also have a unique
opportunity to manufacture or destroy evidence,46 influence witnesses, extract confessions47 and otherwise direct the investigation so as to stack the deck against people
they believe should be convicted.48 And not just small-town police in Podunk or
Timbuktu. Just the other day, “[t]he Justice Department and FBI [] formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony
in almost all [of the 268] trials in which they offered evidence against criminal
defendants over more than a two-decade period before 2000.”49 Do they offer a class
at Quantico called “Fudging Your Results To Get A Conviction” or “Lying On The
Stand 101”? How can you trust the professionalism and objectivity of police anywhere after an admission like that?
There are countless documented cases where innocent people have spent decades
behind bars because the police manipulated or concealed evidence, but two examples
will suffice:

46. One example is the case of Mark Prentice, who pleaded guilty to assault and robbery only after a
New York State Police trooper, David Harding, reported that he had found fingerprints matching Prentice
in the victim’s house. A subsequent investigation revealed that New York State Police troopers, including
Harding, had falsified fingerprint evidence in at least 30 cases, and Harding admitted to planting evidence
in Prentice’s case. Prentice was acquitted after spending six years in prison. Harding was then sentenced
to 4.5 years in prison for fabricating evidence. See The National Registry of Exonerations, Mark Prentice,
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseidϭ4540. In addition to the cases
recorded by the National Registry of Exonerations, researchers became aware of more than 1,100 cases in
which convictions were overturned due to just 13 police corruption scandals, the majority of which
involved planting drugs or guns on innocent individuals. See Chris Seward, Researchers: More than
2,000 False Convictions in Past 23 Years, NBC NEWS (May 21, 2012), http://usnews.nbcnews.com/_news/
2012/05/21/11756575-researchers-more-than-2000-false-convictions-in-past-23-years?lite; Sean Gardiner, Brooklyn District Attorney Kenneth Thompson Takes on Wrongful Convictions, WALL ST. J. (Aug. 8,
2014), http://www.wsj.com/articles/brooklyn-district-attorney-kenneth-thompson-takes-on-wrongfulconvictions-1407547937 (Brooklyn DA Kenneth Thompson’s conviction integrity unit has ordered the
review of more than 100 prior convictions, 70 of which involved accusations that former Brooklyn
Detective Louis Scarcella coerced confessions and tampered with witness statements).
47. See supra n.34 (discussing Rivera’s coerced confession at the hands of the Lake County police);
Spencer Ackerman, “I Sat In That Place for Three Days, Man”: Chicagoans Detail Abusive Confinement
Inside Police “Black Site”, THE GUARDIAN (Feb. 27, 2015), http://www.theguardian.com/us-news/2015/feb/
27/chicago-abusive-confinment-homan-square (four African-Americans describe being detained for several days inside a police warehouse, where they were “shackled and interrogated,” denied access to
counsel and forbidden from notifying anyone of their whereabouts); see also Miriam S. Gohara, A Lie
For a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation
Techniques, 33 FORDHAM URB. L.J. 791, 794-95 (2006); Laure Magid, Deceptive Police Interrogation
Techniques: How Far is Too Far?, 99 MICH. L. REV. 1168, 1168 (2001).
48. 92 percent of arrest warrants obtained by the Ferguson, Missouri Police Department were issued
against African Americans, who as a group were 68 percent less likely than others to have their charges
dismissed. See UNITED STATES DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT, (Mar. 4, 2015), available at http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf.
49. See Hsu, supra n.21.

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xi

In 2013, Debra Milke was released after 23 years on Arizona’s death row based
entirely on a supposed oral confession she had made to one Detective Saldate who
was much later shown to be a serial liar.50 And then there is the case of Ricky
Jackson, who spent 39 years behind bars based entirely on the eyewitness identification of a 12-year-old boy who saw the crime from a distance and failed to pick
Jackson out of a lineup.51 At that point, “the officers began to feed him information:
the number of assailants, the weapon used, the make and model of the getaway car.”52
39 years!
For some victims of police misconduct, exoneration comes too late: Mark Collin
Sodersten died in prison while maintaining his innocence.53 After his death, a
California appellate court determined that Sodersten had been denied a fair trial
because police had failed to turn over exculpatory witness tapes.54 It posthumously
set aside the conviction, which no doubt reduced Sodersten’s time in purgatory.
11. Guilty pleas are conclusive proof of guilt. Many people, including judges,
take comfort in knowing that an overwhelming number of criminal cases are resolved
by guilty plea rather than trial.55 Whatever imperfections there may be in the trial and
criminal charging process, they believe, are washed away by the fact that the
defendant ultimately consents to a conviction. But this fails to take into account
the trend of bringing multiple counts for a single incident—thereby vastly increasing
the risk of a life-shattering sentence in case of conviction56—as well as the creativity
of prosecutors in hatching up criminal cases where no crime exists57 and the
overcriminalization of virtually every aspect of American life.58 It also ignores that

50. Michael Keifer, Debra Milke Murder Charges Dismissed, AZ CENT. (Dec. 11, 2014), http://www.
azcentral.com/story/news/local/phoenix/2014/12/11/%20milke-double-jeopardy-appeals/20253845/.
51. Radley Balko, This Week in Innocence: Ricky Jackson to be Released Tomorrow After 39 Years in
Prison, WASH. POST (Nov. 20, 2014), http://www.washingtonpost.com/news/the-watch/wp/2014/11/20/thisweek-in-innocence-ricky-jackson-to-be-released-tomorrow-after-39-years-in-prison/. Jackson was exonerated thanks to the dedicated efforts of the Ohio Innocence Project. See Ohio Innocence Project,
University of Cincinnati College of Law, http://www.law.uc.edu/oip.
52. Exonerated Man Who Spent 39 Years in Prison Meets Accuser, CBS NEWS VIDEO (Jan. 5, 2015),
http://www.cbsnews.com/videos/exonerated-man-who-spent-39-years-in-prison-meets-accuser/.
53. Laura Ernde, Accused Murderer Cleared Seven Months After Prison Death, DAILY J. (Jan. 18, 2007).
54. In re Sodersten, 53 Cal. Rptr. 3d 572 (Ct. App. 2007).
55. Judge Morris Hoffman, for example, cites to the fact that “almost all criminal defendants plead
guilty” as support for the proposition that “the actual rate of wrongful convictions in the United States is
vanishingly small.” See Morris B. Hoffman, The “Innocence” Myth, WALL ST. J., Apr. 26, 2007, at A19.
But see Rakoff, supra n.34 (strongly objecting to the tendency to equate guilty pleas with actual guilt,
noting that the current “prosecutor-dictated plea bargain system, by creating such inordinate pressures to
enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes
they never actually committed”). As to the meaning of a 1 percent error rate, see infra pp. xiv-xv.
56. H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System,
61 CATH. U. L. REV. 63, 72-74 (2011).
57. See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (reversing Arthur
Andersen’s conviction of obstruction of justice under 18 U.S.C. §§ 1512(b)(2)(A) and (B), where the jury
instructions, consistent with the government’s reading of the vaguely-worded statute, had all but erased a
culpability requirement); United States v. Newman, 773 F.3d 438, 442, 448 (2d Cir. 2014) (pointing out
“the doctrinal novelty of [the government’s] recent insider trading prosecutions” and reversing with
prejudice two hedge fund managers’ convictions for securities fraud because the government “presented
no evidence that [the managers] knew that they were trading on information obtained from insiders in
violation of those insiders’ fiduciary duties”); United States v. Goyal, 629 F.3d 912, 921 (2010) (reversing
a chief financial officer’s convictions of 15 counts of securities fraud and making false statements where
“the government’s case suffered from a total failure of proof”) (internal quotation marks omitted); id. at
922 (Kozinski, C.J., concurring) (“[Goyal] is just one of a string of recent cases in which courts have
found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.
This is not the way criminal law is supposed to work.”) (citations omitted).
58. Justice Scalia criticized the overcriminalization of federal law in his dissent from denial of
certiorari in Sorich v. United States, 555 U.S. 1204 (2009), a case in which the Seventh Circuit affirmed

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44 GEO. L.J. ANN. REV. CRIM. PROC (2015)

many defendants cannot, as a practical matter, tell their side of the story at trial
because they fear being impeached with prior convictions or other misconduct.59
And, of course, if the trial process is perceived as highly uncertain, or even stacked in
favor of the prosecution, the incentive to plead guilty to some charge that will allow
the defendant to salvage a portion of his life, becomes immense.60 If the prosecution
offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the
defendant may cave to the pressure, throwing away a good chance of an acquittal.
12. Long sentences deter crime. In the United States, we have over 2.2 million
people behind bars.61 Our rate of approximately 716 prisoners per 100,000 people is
the highest in the world, over 5 times higher than that of other industrialized nations
like Canada, England, Germany and Australia.62 Sentences for individual crimes are
also far longer than in other developed countries. For example, an individual convicted of burglary in the United States serves an average of 16 months in prison,
compared with 5 months in Canada and 7 months in England.63 And the average
prison sentence for assault in the United States is 60 months, compared to under 20
months in England, Australia and Finland.64
Incarceration is an immensely expensive enterprise. It is expensive for the taxpayers, as the average cost of housing a single prisoner for one year is approximately
$30,000.65 A 20-year sentence runs into something like $600,000 in prison costs
alone. Long sentences are also immensely hard on prisoners and cruel to their
Chicago city employees’ convictions under the honest services mail fraud statute. The statute criminalizes
the use of the mail or wire services to carry out a “scheme . . . to deprive another of the intangible right of
honest services.” 18 U.S.C. § 1346. In urging the Court to construe the statute more narrowly, Justice
Scalia pointed out that the mail fraud statute “has been invoked to impose criminal penalties upon a
staggeringly broad swath of behavior, including misconduct not only by public officials and employees
but also by private employees and corporate fiduciaries”—for example, the convictions of “a local
housing official who failed to disclose a conflict of interest,” “students who schemed with their professors
to turn in plagiarized work” and “lawyers who made side-payments to insurance adjusters in exchange for
the expedited processing of their clients’ pending claims.” Sorich, 555 U.S. at 1204 (Scalia, J., dissenting
from denial of certiorari) (internal quotation marks omitted); see Harvey A. Silverglate, Three Felonies a
Day: How the Feds Target the Innocent (2009) (illustrating the shady practices prosecutors have used in
order to convict individuals under vaguely worded federal statutes for conduct no rational person would
view as criminal); Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN THE
NAME OF JUSTICE 43-56 (Timothy Lynch ed., Cato Institute 2009); Glenn Harlan Reynolds, Ham Sandwich
Nation: Due Process When Everything Is a Crime, 113 COLUM. L. REV. Sidebar 102 (2013); George F.
Will, When Everything Is a Crime, Wash. Post (Apr. 8, 2015), http://www.washingtonpost.com/opinions/
when-everything-is-a-crime/2015/04/08/1929ab88-dd43-11e4-be40-566e2653afe5_story.html.
59. Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct
with Financial Incentives, 64 FORDHAM L. REV. 851, 863 (1995).
60. See John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who
Plead Guilty, 100 CORNELL L. REV. 157 (2014); Bennett L. Gershman, Threats and Bullying by Prosecutors, 46 LOY. U. CHI. L.J. 327 (2014); see also infra n.73.
61. Roy Walmsley, World Prison Populations List (10th ed., Oct. 2013), INTERNATIONAL CENTRE FOR
PRISON STUDIES 3, http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/downloads/wppl_10.
pdf (estimating there are 2,239,751 individuals, including pre-trial detainees, in American penal institutions).
62. Id. (Canada’s rate is 118 per 100,000; England’s is 148 per 100,000; Germany’s is 79 per 100,000;
and Australia’s is 130 per 100,000).
63. See Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, N.Y. TIMES (Apr. 23,
2008), http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html?pagewantedϭ
all&_rϭ0.
64. FINDING DIRECTION: EXPANDING CRIMINAL JUSTICE OPTIONS BY CONSIDERING POLICIES OF OTHER NATIONS, JUST. POL’Y INST. 2 (Apr. 2011), http://www.justicepolicy.org/uploads/justicepolicy/documents/
sentencing.pdf.
65. See NATHAN JAMES, THE BUREAU OF PRISONS (BOP): OPERATIONS AND BUDGET, CONG. RES. SERV. 14
(Mar. 4, 2014), available at http://fas.org/sgp/crs/misc/R42486.pdf; Christian Henrichson & Ruth Delaney, What Incarceration Costs Taxpayers, VERA INST. OF JUST. CENTER ON SENT’G AND CORRECTIONS (Feb.
19, 2012), http://www.vera.org/pubs/special/price-prisons-what-incarceration-costs-taxpayers (“total perinmate cost averaged $31,286” in 2011).

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xiii

families, as it’s usually very difficult for a prisoner to re-integrate into his family and
community after very long prison sentences.66
We are committed to a system of harsh sentencing because we believe that long
sentences deter crime and, in any event, incapacitate criminals from victimizing the
general population while they are in prison. And, indeed, the United States is
enjoying an all-time low in violent crime rates, which would seem to support this
intuition.67 But crime rates have been dropping steadily since the 1990s, and not
merely in the United States but throughout the industrialized world.68 Our intuition
about harsh sentences deterring crime may thus be misguided.69 We may be spending
scarce taxpayer dollars maintaining the largest prison population in the industrialized
world, shattering countless lives and families, for no good reason. As with much else
in the law, the connection between punishment and deterrence remains mysterious.70
We make our decisions based on faith.
II
What I have listed above are some of the reasons to doubt that our criminal justice
system is fundamentally just.71 This is not meant to be an exhaustive list, nor is it
clear that all of these uncertainties would, on closer examination, be resolved against
the current system. But there are enough doubts on a broad range of subjects touching
intimately on the integrity of the system that we should be concerned. The National
Registry of Exonerations has recorded 1576 exonerations in the United States since
1989.72 The year 2014 alone saw a record high of 125 exonerations, up from 91 the
66. See generally Jalila Jefferson-Bullock, The Time is Ripe to Include Considerations of the Effects on
Families and Communities of Excessively Long Sentences, 83 UMKC L. REV. 73 (2014).
67. See Uniform Crime Reports: Crime in the United States 2013, FBI, http://www.fbi.gov/about-us/cjis/
ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/violent-crime/violent-crime-topic-page/violentcrimemain_final (explaining that an estimated 1.16 million violent crimes occurred in the U.S., which is 12.3 percent below
the 2009 level and 14.5 percent below the 2004 level).
68. See Where Have All the Burglars Gone?, THE ECONOMIST (July 20, 2013), http://www.economist.com/
news/briefing/21582041-rich-world-seeing-less-and-less-crime-even-face-high-unemployment-and-economic; see also
Inimai M. Chettiar, The Many Causes of America’s Decline in Crime, THE ATLANTIC (Feb. 11, 2015),
http://www.theatlantic.com/features/archive/2015/02/the-many-causes-of-americas-decline-in-crime/38
5364/.
69. Nor does putting more people behind bars necessarily lead to less crime. A recent report by the
Brennan Center reveals that “incarceration has been decreasing[ly effective] as a crime fighting tactic
since at least 1980,” as increased incarceration has had “no observable effect” on the nationwide decline
in violent crimes in the 1990s and 2000s. See DR. OLIVER ROEDER ET AL., WHAT CAUSED THE CRIME
DECLINE?, BRENNAN CENTER FOR JUST., 22-23 (Feb. 12, 2015), available at https://www.brennancenter.org/
publication/what-caused-crime-decline. A recent study points to “prosecutors—more than cops, judges, or
legislators—as the principal drivers of the increase in the prison population,” explaining that “[t]he real
change is in the chances that a felony arrest by the police turns into a felony case brought by
prosecutors.” See Jeffrey Toobin, The Milwaukee Experiment: What Can One Prosecutor Do About The
Mass Incarceration of African-Americans?, THE NEW YORKER (May 11, 2015), http://www.newyorker.com/
magazine/2015/05/11/the-milwaukee-experiment.
70. Compare VALERIE WRIGHT, DETERRENCE IN CRIMINAL JUSTICE: EVALUATING CERTAINTY VERSUS SEVERITY OF PUNISHMENT, THE SENT’G PROJECT 6-8 (2010), available at http://www.sentencingproject.org/doc/
deterrence%20briefing%20.pdf (compiling several studies that conclude that longer sentences don’t lead
to lower recidivism rates, and can even lead to higher rates), with FRANCESCO DRAGO ET AL., THE
DETERRENT EFFECTS OF PRISON: EVIDENCE FROM A NATURAL EXPERIMENT, THE INST. FOR THE STUDY OF LAB. 2
(Jul. 2007), available at http://ftp.iza.org/dp2912.pdf (finding that in some cases, a longer sentence can
reduce recidivism by 1.24 percent). According to Judge Rakoff, this uncertainty should not stop the
judiciary from speaking out against the “evil” of mass incarceration. Jed S. Rakoff, Mass Incarceration:
The Silence of the Judges, N.Y. REV. BOOKS (May 21, 2015), http://www.nybooks.com/articles/archives/
2015/may/21/mass-incarceration-silence-judges.
71. There are similar reasons to doubt that our civil justice system is fundamentally just, but that’s a
topic for another day.
72. The National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/

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year before, and there is reason to believe the trend will continue.73 Certainly the
significant number of inmates freed in recent years as the result of various innocence
projects and especially as a result of DNA testing in cases where the convictions were
obtained in the pre-DNA era, should cause us to question whether the current system
is performing as effectively as we’ve been led to believe. It’s no answer to say that
the exonerees make up only a minuscule portion of those convicted. For every
exonerated convict, there may be dozens who are innocent but cannot prove it.
We can be reasonably confident that the system reaches the correct result in most
cases, but that is not the test. Rather, we must start by asking how confident we are
that every one of the 2.2 million people in prisons and jails across the country are in
fact guilty. And if we can’t be sure, then what is an acceptable error rate? How many
innocent lives and families are we willing to sacrifice in order to have a workable
criminal justice system? If we put the acceptable error rate at 5 percent, this would
mean something like 110,000 innocent people incarcerated across the country. A 1
percent error rate would mean 22,000 innocent people—more or less the population
of Nogales, Arizona—wrongly imprisoned. These numbers may seem tolerable unless, of course, you, your friend or loved one draws the short straw.
Do we know how these numbers compare to the actual error rate? We have no
idea. What we have is faith that our system works very well and the errors, when they
are revealed, are rare exceptions.74 Much hinges on retaining this belief: our self
image as Americans; the pride of countless judges and lawyers; the idea that we live
in a just society; confidence in the power of reason and logic; the certainty that none
of us or our loved ones will face the unimaginable nightmare of unjust imprisonment
detaillist.aspx (last visited Apr. 7, 2015). Of these exonerated individuals, 112 were sentenced to death,
and 265 spent more than 20 years behind bars. The average time spent in prison was 9 years, with 40
percent imprisoned for more than 10 years. 80 percent were convicted by juries, 7 percent by judges and
12 percent pleaded guilty. 25 percent were exonerated at least in part by DNA evidence. The following
factors contributed to their exonerations: mistaken witness identification (34% of exonerations); perjury
or false accusation (55%); false confession (13%), defective or misleading forensic evidence (22%) and
official misconduct (46%). Cases often involve more than one of these factors. See The National Registry
of Exonerations, % Exonerations by Contributing Factor (last visited Apr. 7, 2015), http://www.law.umich.
edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx.
73. 47 of the 125 exonerations in 2014 involved defendants who had pleaded guilty. See University of
Michigan, The National Registry of Exonerations, Exonerations in 2014, 3 (Jan. 27, 2015), https://www.
law.umich.edu/special/exoneration/Documents/Exonerations_in_2014_report.pdf. The exonerations were
mostly concentrated in California, Texas, New York and Illinois. According to an in-depth study by SAN
FRANCISCO magazine, between 1989 and 2004, more than 200 California inmates were freed after courts
found they were wrongfully convicted. See Nina Martin, Innocence Lost, S.F. (Nov. 2004),
http://deathpenalty.org/downloads/SFMag.pdf.
Their stories are the stuff of nightmares. Take, for example, Gloria Killian, a 30-something former law
student who had signed up to do freelance detective work for a coin shop owner. One day, an elderly coin
collector was robbed and killed, and someone called the Sacramento police accusing “a law student
named Gloria” of being involved. Nothing came of this accusation until a year later, when a repeat felon
named Gary Masse was convicted of the murder and sentenced to life without parole. He named Killian
as his accomplice and claimed she masterminded the robbery. The accusation stuck, and Killian was
convicted of conspiracy and murder, and sentenced to 32 years to life. Masse got his sentence reduced to
25 years. Over a decade later, a new investigation uncovered evidence that Masse had entered into an
agreement with prosecutors to testify against Killian in exchange for leniency—a fact never disclosed to
the defense. The investigation also turned up a letter Masse sent to the DA soon after Killian was
sentenced, in which he wrote, “I lied my ass off for you people.” A panel of our court reversed Killian’s
conviction in 2002, at which point she had already lost 16 years of her life to prison. See Killian v. Poole,
282 F.3d 1204 (9th Cir. 2002). The prosecutor walked away with an admonishment from the California
State Bar. See Martin, supra, at 10-11.
74. Judge Hoffman cautions against the assumption that “our criminal justice system [is] so dismal
that a rightful conviction seems the exception and not the rule,” urging that we “look not only at the
number of wrongfully convicted defendants, but also at the number of rightly convicted ones.” See
Hoffman, supra n.55.

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or execution; belief in the incomparable integrity and accuracy of our system of
justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane
and proportionate. There are, we are convinced, no Edmond Dante`ses and no Chaˆteau
d’Ifs in America today.
But what do we really know? We must reject out of hand the idea that the number
of actual exonerations represents all of those who have been wrongly convicted.
Convicted prisoners wishing to gain release on grounds of innocence face formidable
hurdles.75 To begin with, they are in prison and thus unable to pursue leads the police
might have missed; they have to rely on someone on the outside to do it, and that’s
often difficult or impossible to accomplish. A prisoner’s access even to his counsel is
severely restricted once he’s incarcerated. A loyal friend or relative might do it, but
friends and even relatives often abandon defendants who are convicted, no matter
how much they may protest their innocence. A few prisoners may obtain the help of
an innocence project, but the work is labor-intensive, resources are scarce and
manpower is limited, so innocence projects engage in triage, focusing on the most
promising cases.76 Of course, it’s often difficult to tell whether a case is promising
until you look closely at it, so a promising case can easily be overlooked.
But the biggest problem is that new evidence is hard—and often impossible—to
find. If it’s a physical crime, police secure the crime scene and seize anything that
looks like it could be relevant. The chance of going back years later and picking up
new clues is vanishingly small. The trick then is to get whatever evidence the police
have, assuming they didn’t destroy it or release it once it was clear that it wouldn’t be
used at trial. If the crime is non-physical, such as fraud, child pornography or
computer hacking, the police seize all the relevant computers, hard drives and paper
records (including any exculpatory evidence the suspect may have there) and may
well discard them after the conviction becomes final. For a brief period, DNA
evidence helped exculpate defendants who were convicted in the pre-DNA era,77 but
DNA often cannot help identify the true perpetrator because no sample of DNA was
found or collected from the crime scene.78 A prisoner has to be exceedingly lucky to

75. See Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 1670-84 (2008).
76. See Steven A. Krieger, Why Our Justice System Convicts Innocent People, and the Challenges
Faced by Innocence Projects Trying to Exonerate Them, 14 NEW CRIM. L. REV. 333, 367-77 (2011) (the
average innocence project receives about 600 requests per year, but only has the bandwidth to effectively
investigate around 100 cases per year).
77. Often over the dogged opposition of prosecutors who have no wish to have a victory snatched
away. Take, for example, Ken Anderson, the Texas district attorney who succeeded in putting Michael
Morton in prison for murder. See infra nn.80-82 and accompanying text. Morton was released after
twenty-five years based on DNA test results linking the crime to another man, as well as exculpatory
evidence that Anderson had withheld during trial. For six years, Anderson’s successor, John Bradley,
fought Morton’s repeated requests for DNA testing, explaining that “[o]nce a prosecutor has a case in
which he or someone else has achieved a conviction where a body of people have been convinced beyond
reasonable doubt someone is guilty and then sentenced them, the presumption becomes that that is a
justified verdict that the prosecutor must defend.” See Brandi Grissom, A Tough Prosecutor Finds His
Certitude Shaken by a Prisoner’s Exoneration, T HE T EX . T RIB . (Nov. 18, 2011), http://www.
texastribune.org/library/multimedia/john-bradley-texas-prosecutor-asserts-change-of-heart/.
The prosecutors in Anthony Ray Hinton’s case took the same approach as Bradley: “Despite pleas by
Mr. Hinton’s lawyers, who cited conclusions by newly enlisted specialists, the state refused for years to
reconsider the evidence” that eventually led to his release after 30 years on death row. See Alan Blinder,
Alabama Man Freed After Decades On Death Row, N.Y. TIMES (Apr. 3, 2015), http://www.nytimes.com/
2015/04/04/us/anthony-ray-hinton-alabama-prison-freed-murder.html?mwrsmϭEmail&_rϭ1; see infra n.167.
78. See Richard A. Rosen, Innocence and Death, 82 N.C. L. REV. 61, 73 (2003) (“[F]or every
defendant who is exonerated because of DNA evidence, there have been certainly hundreds, maybe
thousands, who have been convicted of crimes on virtually identical evidence,” yet “[f]or these thousands
of defendants . . . there was no physical evidence that could have been subjected to scientific scrutiny.”).

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collect enough evidence to prove his innocence; most cannot hope to meet that
standard. I think it’s fair to assume—though there is no way of knowing—that the
number of exculpations in recent years understates the actual number of innocent
prisoners by an order, and probably two orders, of magnitude.79
Wrongful convictions are not merely unjust to the prisoner and his family, they
often result in another injustice or series of injustices: When an innocent man is
convicted, a guilty man is left free and emboldened to victimize others. The Michael
Morton case provides a good example.80 Morton was convicted in 1987 for the 1986
beating murder of his wife. Twenty-five years later he was exonerated when DNA
evidence pointed to another man, Mark Norwood, who was eventually convicted of
killing Mrs. Morton. However, Norwood has now been charged with the similar
beating-death of another woman, Debra Baker; that murder was committed a year
after Morton was convicted of his wife’s murder.81 Norwood is awaiting trial for the
Baker murder.82 Had police continued to investigate the Morton murder instead of
shutting down the investigation once they decided that Michael Morton was the
culprit, Debra Baker might still be alive.
There’s another question the answer to which we must be reasonably confident: Of
those that are guilty, can we be sure that substantial numbers are not spending far
more time behind bars than is justified? The question of how much time prisoners
spend behind bars is no less important than that of whether only the guilty are being
locked up. The ability to pick up the threads of one’s life after three to five years in
prison is quite different than after fifteen, twenty or twenty-five years. Aside from the
brutalizing and often dehumanizing effect of long-term imprisonment,83 an inmate
who is released after a lengthy prison term simply does not return to the same world
he left behind: Children grow up; spouses find other partners; friends and acquaintances forget; job prospects disappear; life and work skills deteriorate.84 Shorter
sentences also reduce the consequences of wrongful convictions. While no time
behind bars can be justified for someone who is innocent,85 we must be especially
careful before imposing life-altering sentences.
By any measure, the United States leads the world in incarceration. In absolute
terms, it has more prisoners than any other country. With just 5 percent of the world’s

79. See Samuel R. Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced
to Death, 111 PROC. NAT’L ACAD. SCIS. 7230, 7230 (2014), http://www.ncbi.nlm.nih.gov/pmc/articles/
PMC4034186/ (acknowledging that “the great majority of innocent defendants remain undetected,” and
conservatively estimating that at least 4.1 percent of those on death row are innocent).
80. See supra n.77; Innocence Project, Michael Morton, http://www.innocenceproject.org/cases-falseimprisonment/michael-morton.
81. Morton was convicted and sentenced to life in prison in February 1987, and Baker was murdered
in January 1988. See Brandi Grissom, Mark Norwood Indicted in Second Austin Murder, THE TEX. TRIB.
(Nov. 9, 2012), http://www.texastribune.org/2012/11/09/mark-norwood-faces-grand-jury-second-austinmurder/.
82. See Claire Osborn & Jazmine Ulloa, Mark Norwood, Sentenced to Life for Morton Murder, Pleads
Not Guilty in Second Case, STATESMAN (Jan. 9, 2014), http://www.statesman.com/news/news/local/marknorwood-sentenced-to-life-for-morton-murder-p/nchx2/; Jazmine Ulloa, Judge Delays Trial in the 1988
Killing of Debra Baker, STATESMAN (Jan. 12, 2015), http://www.statesman.com/news/news/crime-law/judgedelays-trial-in-the-1988-killing-of-debra-ba/njmTY/.
83. See Jefferson-Bullock, supra n.66, at 100-05.
84. See Craig Haney, The Psychological Impact of Incarcertation: Implications for Postprison Adjustment, in PRISONERS ONCE REMOVED 46-48 (Jeremy Travis & Michelle Waul eds., The Urb. Inst. Press
2003).
85. Jails, which primarily house the legally innocent, treat their inmates no better than prisons do, and
have their own share of horror stories. See Ryan Cooper, How Your Local Jail Became Hell: An
Investigation, THE WEEK (Mar. 31, 2015), http://theweek.com/articles/540725/how-local-jail-became-hellinvestigation.

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population, we have almost a quarter of the world’s prisoners.86 China, with nearly 20
percent of the world’s population, has 16 percent of the world’s prisoners.87 Incarceration rates were not always this high in the United States. For the first three-quarters of
the twentieth century, the rate was well under 250 per 100,000.88 Then, starting
around 1980, incarceration rates started rising sharply with the advent of the war on
drugs, mandatory minimum sentences and three-strikes laws.89
The difference in incarceration rates cannot be explained by higher crime rates in
the United States. Crime rates here are roughly equivalent to Canada and in many
categories lower than other countries.90 And the crime rate has been dropping in the
United States, as in many other industrialized nations.91 Yet, U.S. sentences are
vastly, shockingly longer than just about anywhere else in the world.92
There are reasons to doubt whether the length of prison sentences in this country is
just. Although elected officials, regardless of party affiliation and political leaning,
seem to favor Draconian sentences, and the public seems to support them in the
abstract, it’s unclear how much popular support they enjoy when applied to individual defendants. U.S. District Judge James Gwin of Ohio reported on an informal
study he conducted involving 22 jury trials.93 He asked the jurors who had convicted
the defendant to write down what each thought was the appropriate sentence. Judge
Gwin found that the jurors’ recommended sentences were significantly lower than
those recommended by the Sentencing Guidelines: “In several cases, the recommended median Guidelines range was more than 10 times greater than the median
jurors’ recommendation. Averaged over more than 20 cases, jurors recommended
sentences that were 37% of the minimum Guidelines recommended sentences and
22% of the median Guidelines recommended sentences.”94
Whether we are incarcerating the right people and for an appropriate length of time
are important questions to which we do not have very good answers. We are taught
early in our schooling that the criminal justice system is tilted heavily in favor of
defendants, resolving all doubts in their favor. Movies and television reinforce this
idea with countless stories of dedicated police and prosecutors bringing guilty people
to justice,95 or of acquittals of the innocent because of the efforts of a dedicated
lawyer or investigator.96 Our educational system spends little time pondering the fate
86. Liptak, supra n.63.
87. Walmsley, supra n.61.
88. See JUSTICE POLICY INSTITUTE, THE PUNISHING DECADE: PRISON AND JAIL ESTIMATES AT THE MILLENNIUM
4 (2000), available at http://www.justicepolicy.org/images/upload/00-05_rep_punishingdecade_ac.pdf
(charting incarceration rates from 1900 onwards).
89. Id. Some states, like Maine and Minnesota, have stayed at the pre-1980s levels. Others, like Texas
and Louisiana, have around 1000 inmates per 100,000 of population—which means that one out of every
100 people in those states are prisoners. See Liptak, supra n.63. Are people in Texas and Louisiana really
three times worse than those in Maine and Minnesota?
90. See Jan van Dijk, John van Kesteren & Paul Smit, CRIMINAL VICTIMISATION IN INTERNATIONAL
PERSPECTIVE 43 (2007), http://www.unicri.it/services/library_documentation/publications/icvs/publications/
ICVS2004_05report.pdf (ranking the top 15 countries by victimization rates, with Canada and the United
States coming in 12th and 13th, respectively).
91. The Curious Case of the Fall in Crime, ECONOMIST (July 20, 2013), http://www.economist.com/news/
leaders/21582004-crime-plunging-rich-world-keep-it-down-governments-should-focus-prevention-not.
92. FINDING DIRECTION: EXPANDING CRIMINAL JUSTICE OPTIONS BY CONSIDERING POLICIES OF OTHER NATIONS, supra n.64.
93. James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect
Community Values?, 4 HARV. L. & POL’Y REV. 173 (2010).
94. Id. at 187-88.
95. See, e.g., JFK (Warner Bros. 1991); Law & Order: Special Victims Unit (NBCUniversal Television
Distribution 1999-2015).
96. See, e.g., CONVICTION (Fox Searchlight Pictures 2010); JUST CAUSE (Warner Bros. 1995); MY
COUSIN VINNY (Twentieth Century Fox 1992); TO KILL A MOCKINGBIRD (Universal Pictures 1962).

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of those unjustly convicted or those wasting their lives behind bars because of a
punishment that far outstrips whatever evil they were convicted of committing. No
Dumas, Hugo or Zola has risen among us to foment public sympathy to the plight of
the unjustly imprisoned.
III
Lawyers and judges are inculcated with the notion that the system works well and
there is nothing to worry about. And perhaps it’s true. But there are far too many
uncertainties for us to be complacent. Criminal trials as we know them were
developed centuries ago at a time when life and technology were very different.
The process has remained essentially unchanged since time out of mind. While we
have much experience with the process, we know very little about how well it works.
We tell ourselves that the system works, and we really believe it, but this is largely
based on faith. When all is said and done, we have only a guess.
Below I offer some suggestions on how the system might be improved and
validated. I do not suggest how these changes are to be implemented: Some may
require legislation; others a change in judicial practices; still others constitutional
amendments. Nor do I insist that all my suggestions be implemented immediately.
Some may deserve closer attention, and some should be delayed while others are
accelerated. There may well be good reasons that my suggestions are unworkable,
and perhaps others will come up with better ones. If my proposals raise controversy
and opposition, leading to a spirited debate, I will have achieved my purpose.97
A. Juries
Juries matter. They obviously matter in the relatively few cases that are actually
tried to them, but they also matter in the multitude of cases that are pled or settled. To
the extent the jury is viewed as an unpredictable, erratic force, it increases the
uncertainty of the outcome and thus considerably raises the stakes for the parties,
especially criminal defendants. If a prosecutor can make a credible case that a jury
might return a verdict calling for life without parole, he is very likely to extract a plea
deal involving a “mere” 15- or 20-year sentence.
Most judges, especially trial judges, express satisfaction with the operation of the
jury system. I’ve heard judges say that they seldom or never think juries reach the
wrong outcome. I am skeptical of such claims. To begin with, judges don’t know any
better than anyone else what is the correct verdict in a case. The most they can say is
that they would have reached the same verdict as the jury.98 But judges are not
usually called upon to make findings when they are presiding over a jury trial; their
function is to determine whether there is sufficient evidence to support a guilty
verdict, a process which presupposes that the prosecution’s witnesses are believed by
the trier of fact. This is a very different and much less rigorous process than figuring
out who’s lying and who’s telling the truth, and I doubt that judges routinely go
through that process in parallel with the jury. I certainly don’t.
Actual observation of behavior in the jury room is rare, but it does exist. As
cameras have become smaller and less obtrusive over the last quarter century, we’ve

97. “When critics disagree, the artist is in accord with himself.” Oscar Wilde, THE PICTURE OF DORIAN
GRAY, Preface (1891).
98. In fact, judges are far more likely to acquit than juries. See Andrew D. Leipold, Why Are Federal
Judges So Acquittal Prone?, 83 WASH. U. L.Q. 151, 151 (2005) (“Statistically, federal judges are
significantly more likely to acquit than a jury is—over a recent 14 year period, for example, the jury trial
conviction rate was 84%, while the bench conviction rate was a mere 55%.”).

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had several instances where we have been able to observe jury-room behavior.99 The
results are not particularly reassuring.
There is at least one case of documented jury nullification, with every juror
expressing the belief that the defendant was guilty yet acquitting him nevertheless.100
In another case, jurors misconstrued the judge’s denial of their request for a certain
transcript to mean that they were not entitled to any transcripts from the trial.101 And
in a high profile murder trial, one juror experienced aggressive pushback for expressing skepticism of the defendant’s guilt because the medical examiner had switched
her diagnosis from accidental drug overdose to homicide only after listening to a tape
recording where the defendant said “I got away with it.”102 The juror asked the judge
(unsuccessfully) to excuse her from the jury because she was uncomfortable with
being pressured, and eventually voted with the majority to convict the defendant
while protesting that she was doing so in a “bullied manner.” Worse still, in
deliberations after the penalty phase of the trial, a different juror expressed a
complete change of heart from the jury’s guilty verdict the day before, emphatically
maintaining that she never believed the defendant committed one of the two murders
of which he was convicted. In short, “[e]ven with the camera rolling, jurors compromised on verdicts, allowed personality conflicts to interfere with the deliberations,
and oversimplified the judge’s instructions.”103
Anecdotal accounts tend to support this view. I always debrief my jurors after they
return a verdict (I’ve never had a hung jury) and try to get them to talk about what
happened in the jury room. Some of the comments seem entirely rational, but much
of what jurors describe looks like a fun-house mirror reflection of Twelve Angry Men.
There was one case I remember where the jury acquitted despite what I thought was
an iron-clad prosecution case. I was a bit shocked and entirely puzzled about what
had happened. When I debriefed the jury, I got somewhat muted responses from most
of the jurors but one gentleman, who turned out to be the foreman, had very strong
views. He thought the government was wasting taxpayer money in prosecuting this
defendant who had been caught red-handed with a suitcase full of some 10,000
Ecstasy pills just imported from Europe. The foreman was a large man and quite
vociferous—almost belligerent—about it. Of course, during voir dire I had asked the
usual questions about whether any of the panel members had philosophical objections
to our drug laws, and he had answered in the negative. The reality was different; he
had strong objections to the war on drugs and managed to pull the jury with him.
That one strong personality can dominate the jury room is consistent with my own
experience. I’ve sat on two (state) juries. One of the cases was not close by any

99. TV cameras have entered the jury room on at least three occasions. First, in 1986, PBS aired a
broadcast showing footage of deliberations in a Wisconsin criminal trial. Inside the Jury Room (PBS
Frontline television broadcast 1986). Then, in 1997, CBS aired a 2-hour documentary consisting of
footage of jury deliberations in four Arizona trials. Enter the Jury Room (CBS Reports television
broadcast 1997). Most recently, in 2004, ABC aired a 7-part TV series following six homicide cases from
the pretrial stage to the jury deliberations and final verdict. In the Jury Room (ABC television broadcast
2004).
100. The jurors in the Wisconsin trial all acknowledged early in the deliberations that they believed the
defendant was guilty, but concluded that the only way they could achieve a just result was to ignore the
law. See Inside the Jury Room (PBS Frontline television broadcast 1986); Margaret E. Guthrie, Film
Takes an Inside Look at Deliberations of Jurors, NAT’L L.J. (Apr. 14, 1986).
101. See Enter the Jury Room (CBS Reports television broadcast 1997); David Schneider, Jury
Deliberations and the Need for Jury Reform: An Outsider’s View, 36 JUDGES’ J. 23, 31, 53 (1997).
102. In the Jury Room (ABC television broadcast 2004) (following the deliberations in State of Ohio v.
Mark Ducic). The foreman, for example, accused the juror of “fighting logic.”
103. Diane E. Courselle, Struggling With Deliberative Secrecy, Jury Independence, and Jury Reform,
57 S.C. L. REV. 203, 229 (2005) (discussing the jury deliberations in the ABC In the Jury Room series).

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measure, but the other one hinged on the testimony of a single witness, as there was
no physical evidence whatsoever. The police had not even managed to recover a large
bag of coins that the accusing witness claimed he had handed over to the defendant
during a store holdup, even though the defendant was apprehended within 20 minutes
of the robbery, just a couple of blocks away. Having been elected foreman, I spoke
after every one of my fellow jurors had expressed the view that the defendant was
guilty. I reminded my colleagues of the prosecution’s heavy burden of proof and
questioned whether the complaining witness’s identification could be trusted given
the missing coins. If the defendant was, in fact, the perpetrator, he couldn’t have
spent a bag of assorted coins in the time it took to apprehend him, and he couldn’t
easily have hidden it when he saw the police approaching. And wouldn’t he have
gotten much farther from the scene of the crime if he were carrying a bag of stolen
coins? One by one, all but one of the other jurors switched their votes to acquit. The
one exception proved impossible to budge so we eventually asked the judge to
declare a mistrial, which he did.
The simple truth is that our confidence in juries rests largely on faith, and our
processes are not designed to help us improve the functioning of the jury because
there is no systematic feedback mechanism to help us figure out what works and what
doesn’t. I’ve recently suggested that we introduce cameras into the jury room,104 and
I will not rehash the arguments I’ve advanced in support. Suffice to say that viewing
what juries do in actual cases will give us a much better understanding of jury
behavior and provide valuable information for different techniques in presenting
evidence, instructing juries and jury management. Seeing what juries do in actual
cases can also ameliorate or eliminate the endless speculation about which trial errors
are harmless and which are prejudicial. Why shoot in the dark when a man’s liberty
or life is at stake? The same is true where there is a claim of improper juror conduct.
In such circumstances, the trial judge will hear conflicting accounts about what
happened in the jury room. Wouldn’t it be better to see and hear what actually
transpired?
Videos of jury deliberations could be sealed and preserved for viewing by researchers only after the case is final. Or they could be made available to the trial judge and a
reviewing court as needed to resolve questions involving the jury’s conduct. Or they
could be made available to the lawyers immediately after the verdict. Disclosure
could be implemented incrementally over time and rolled back if the process is found
to interfere with the jury’s function. But we need to get a close look as to what’s
going on in the jury room before we can even begin the process of meaningful
reform.
In the meantime—or in addition—I offer the following suggestions for reform:
1. Give jurors a written copy of the jury instructions. Jury instructions are often
lengthy and difficult to follow. Jurors are expected to absorb them by listening, which
is probably the worst way to learn new and complex subject matter.105 Many judges
try to ameliorate this problem by sending a copy of the instructions into the jury room
when the panel retires to deliberate, but some judges refuse to do so. It should be
reversible error for a judge to fail to send a full set of jury instructions with the jury
when it retires to deliberate. Pre-instructing the jury on key concepts and giving them
those instructions in writing is also a good idea.
2. Allow jurors to take notes during trial and provide them with a full trial
104. See Alex Kozinski & John Major, Why Putting Cameras in the Jury Room Is Not as Crazy as You
Think, DUKE JUDICATURE (forthcoming 2015).
105. See Michael A. Cohen et al., Auditory Recognition Memory Is Inferior to Visual Recognition
Memory, 106 PROC. NAT’L ACAD. SCIS. 6008, 6008 (Apr. 7, 2009).

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transcript. Most judges now allow note-taking and provide writing materials for the jury
to use, but a minority refuse to do so. This should be reversible error. Consulting notes
during deliberations is immensely useful when the jurors’ memories differ as to what a
witness has said. Forcing jurors to rely on their recollections alone exacerbates the distorting
memory effects discussed above. In fact, I would go a step farther and give jurors transcripts
of the proceedings to consult during deliberations. This was not possible when transcripts
had to be transcribed laboriously by hand. But real-time transcripts are now pretty much
standard and available for the judge and lawyers to consult while the trial is going on. I can
see no justification for keeping jurors in the dark.
3. Allow jurors to discuss the case while the trial is ongoing. Most jury trials
now start with a stern admonition that jurors not discuss the case until they are sent
out to deliberate. It’s unclear why we do this except that we’ve always done it that
way.106 When I served as a juror, this restriction seemed unnatural and counterproductive. My guess is that it exacerbates the distorting effects of memory. Allowing
jurors to discuss what they’ve heard could give them a chance to express doubts and
to remind each other of the need to keep an open mind.
4. Allow jurors to ask questions during the trial. I’ve been doing this for some
years in civil cases and it seems to work well. I ask jurors to put any questions in
writing and hand them up to me. I then share these questions with the lawyers and let
one or both use them during their examinations. Other techniques are possible,
including having jurors pose questions to the witnesses directly and letting the
lawyers follow up in light of the answers.
5. Tell jurors up-front what’s at stake in the case. In most jurisdictions, jurors in
non-capital cases are not told what the likely punishment will be if the defendant is
convicted. In fact, we tell jurors not to consider punishment in deciding guilt. I don’t
understand why this is appropriate. In making most life decisions, we consider the
consequences in determining how much effort to put into deciding and the degree of
confidence we must feel before we go forward. Whether to get married or have a
risky operation obviously requires a greater psychological commitment than choosing
between Starbucks and Peets. Jurors should be told the gravity of the decision they
are making so they can take it into account in deciding whether to convict or acquit.
As representatives of the community where the defendant committed his crime, the
jury should be allowed to make the judgment of whether the punishment is too severe
to permit a conviction. Having to confront the jury with the severity of the punishment they are seeking to extract may well deter prosecutors from using overcharging
as a bargaining tool.
6. Give jurors a say in sentencing. Except for capital cases, we have turned our
sentencing process over entirely to experts and professionals. We have mandatory
minimums, sentencing guidelines, probation officers and judges at all levels involved
in the decision, but we studiously ignore the views of the very people who heard the
evidence and are given the responsibility to determine guilt or innocence while
reflecting the values of the community in which the offense occurred. This is a
system only a lawyer could love. Jurors should be instructed on the range of
punishments authorized by law and, if they find the defendant guilty, entrusted to
weigh in on the appropriate sentence within that range. And I would make that the
absolute upper limit of what punishment the judges actually impose, overriding any
sentencing guidelines, mandatory minimums or their own considered judgment.
106. See David A. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 MIL. L. REV. 92, 94-95, 121-24 (2002) (chronicling the history of the prohibition
against pre-deliberation discussion and concluding that the rule doesn’t make sense and should be
abolished).

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B. Prosecutors
Prosecutors hold tremendous power, more than anyone other than jurors, and often
much more than jurors because most cases don’t go to trial. Prosecutors and their
investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense
under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find
out whether the prosecution is complying with this obligation.
Prosecutors also have tremendous control over witnesses: They can offer
incentives—often highly compelling incentives—for suspects to testify. This includes
providing sweetheart plea deals to alleged co-conspirators and engineering jail-house
encounters between the defendant and known informants. Sometimes they feed
snitches non-public information about the crime so that the statements they attribute
to the defendant will sound authentic.107 And, of course, prosecutors can pile on
charges so as to make it exceedingly risky for a defendant to go to trial. There are
countless ways in which prosecutors can prejudice the fact-finding process and
undermine a defendant’s right to a fair trial.108
This, of course, is not their job. Rather, as the Supreme Court has held, “[A
prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigor—indeed, he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones.”109 All prosecutors purport to operate just this
way and I believe that most do. My direct experience is largely with federal
prosecutors and, with a few exceptions, I have found them to be fair-minded,
forthright and highly conscientious.110 But there are disturbing indications that a
non-trivial number of prosecutors—and sometimes entire prosecutorial offices—
engage in misconduct that seriously undermines the fairness of criminal trials. The
misconduct ranges from misleading the jury,111 to outright lying in court112 and tacitly

107. Recently, California Superior Court Judge Thomas Goethals removed the Orange County DA’s
office from a high profile murder case after the prosecutors had shown a “chronic failure” to comply with
orders to turn over evidence with respect to how defendant Scott Dekraai was assigned a cell next to a
prolific jailhouse informant as part of a larger scheme to extract false confessions. People v. Dekraai,
Supplemental Ruling 12ZF0128 (Cal. Sup. Ct. Mar. 12, 2015), http://big.assets.huffingtonpost.com/SUPP
LEMENTALRULINGDekraai03122015.pdf; see Paloma Esquivel, D.A. Ran Illegal Snitch Operation in
O.C. Jail, Attorneys Say, L.A. TIMES (Feb. 27, 2014), http://articles.latimes.com/2014/feb/27/local/
la-me-ln-jailhouse-informant-operation-20140227.
Indeed, last year, it was revealed that “two of the most prolific jailhouse informants in Orange and Los
Angeles counties, Raymond Cuevas and Jose Paredes[, had] befriended suspects in jail and collected
information in more than 30 criminal cases” in exchange for over $150,000 from local law enforcement
authorities. See Tony Saavedra, Money, Cable TV, Food Delivery: How Mexican Mafia Snitches Lived
Like Kings Behind Bars, O.C. REG. (Nov. 23, 2014), http://www.ocregister.com/articles/cuevas-643108paredes-informants.html; see also REPORT OF THE 1989-90 LOS ANGELES COUNTY GRAND JURY: INVESTIGATION OF THE INVOLVEMENT OF JAIL HOUSE INFORMANTS IN THE CRIMINAL JUSTICE SYSTEM IN LOS ANGELES
COUNTY 28, available at http://perma.cc/S2MB-LTEV (“Copies of arrest reports, case files, and photographs of victims are shown to informants.”); Tracey Kaplan, Santa Clara County: Ex-Jailer Says
Planting Informants Was Routine, SANTA CRUZ SENTINEL (Mar. 1, 2015), http://www.santacruzsentinel.com/
general-news/20150301/santa-clara-county-ex-jailer-says-planting-informants-was-routine.
108. See, e.g., Peder B. Hong, Summation at the Border: Serious Misconduct in Final Argument in
Criminal Trials, 20 HAMLINE L. REV. 43, 45-55 (1996) (outlining 19 forms of serious misconduct).
109. Berger v. United States, 295 U.S. 78, 88 (1935).
110. I was less impressed with the prosecutor in one of the two cases where I participated as a juror. I
thought he engaged in unfair tactics that I would not have allowed, had I been the judge.
111. See, e.g., United States v. Kojayan, 8 F.3d 1315, 1322 (9th Cir. 1993) (AUSA strongly implied that a
participant in the crime had not entered into a cooperation agreement, knowing full well that he had).
112. See, e.g., Sidney Powell, Federal Judge Blasts Yet Another Federal Prosecutor for Lying to the
Court, OBSERVER (Dec. 9, 2014), http://observer.com/2014/12/federal-judge-blasts-yet-another-federal-

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acquiescing or actively participating in the presentation of false evidence by police.113
Prosecutorial misconduct is a particularly difficult problem to deal with because so
much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory
evidence to the defense, who is to know? Or if a prosecutor delays disclosure of
evidence helpful to the defense until the defendant has accepted an unfavorable plea
bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they
know to be liars, or if they acquiesce in a police scheme to create inculpatory
evidence, it will take an extraordinary degree of luck and persistence to discover
it—and in most cases it will never be discovered.
There are distressingly many cases where such misconduct has been documented,114 but I will mention just three to illustrate the point. The first is United
States v. Stevens,115 the prosecution of Ted Stevens, the longest serving Republican
Senator in history. Senator Stevens was charged with corruption for accepting the
services of a building contractor and paying him far below market price—essentially
a bribe. The government’s case hinged on the testimony of the contractor, but the
government failed to disclose the initial statement the contractor made to the FBI that
he was probably overpaid for the services. The government also failed to disclose that
the contractor was under investigation for unrelated crimes and thus had good reason
to curry favor with the authorities.116
Stevens was convicted just a week before he stood for re-election and in the wake
of the conviction, he was narrowly defeated, changing the balance of power in the
Senate.117 The government’s perfidy came to light when a brave FBI agent by the
name of Chad Joy blew the whistle on the government’s knowing concealment of
exculpatory evidence. Did the government react in horror at having been caught with

prosecutor-for-lying-to-the-court/ (AUSA in United States v. Seggerman, No. 10-cr-948 (S.D.N.Y.) was
“lambasted” by Judge Kevin Duffy for being caught in “a flat out lie”—namely, by telling the court that
press releases were not issued when they indeed had been).
113. See, e.g., Gathers v. United States, Nos. 09-CO-422, 11-CO-1676, 11-CO-1677, 12-CO-1411,
12-CO-1412, at 17-18 (D.C. Ct. App. Oct. 23, 2014), http://www.dccourts.gov/internet/documents/09-CO422.pdf (granting a new trial because the government presented “plainly false evidence highly prejudicial
to the outcome” and “knew or should have known of the falsity, however belatedly this falsity may have
come to the forefront”).
114. See The Open File Blog, http://www.prosecutorialaccountability.com/ (chronicling nationwide
instances of prosecutorial misconduct); Registry Database, CENTER FOR PROSECUTOR INTEGRITY, http://www.
prosecutorintegrity.org/registry/database/. The former governor of Illinois just pardoned a prisoner who
had served 22 years because the prosecution was tainted with numerous flaws, including prosecutorial
misconduct. See Nicholas Schmidle, Freedom for Tyrone Hood, THE NEW YORKER (Jan. 13, 2015),
http://www.newyorker.com/news/news-desk/freedom-tyrone-hood.
115. No. 08-cr-231 (EGS), 2009 WL 6525926 (D.D.C. Apr. 7, 2009).
116. The whole sordid episode, as well as several others, are detailed in Sidney Powell’s powerful
book, Licensed to Lie. See SIDNEY POWELL, LICENSED TO LIE 190-201 (2014).
117. This wasn’t the only prosecution that has had profound effects on American politics. “A
revelation in journalist Judith Miller’s new memoir, ‘The Story: A Reporter’s Journey,’ exposes unscrupulous conduct by Special Counsel Patrick J. Fitzgerald in the 2007 trial of I. Lewis ‘Scooter’ Libby.”
Berkowitz, supra n.31. According to Berkowitz, “It is painful to contemplate how many lives—American
and Iraqi—might have been spared had Mr. Libby, the foremost champion within the White House in
2003 of stabilizing Iraq through counterinsurgency operations, not been sidelined and eventually forced
to resign because of Mr. Fitzgerald’s multiyear investigation and relentless federal prosecution.” Id.
Overly aggressive prosecution also wrecked the political career of longtime Iowa state legislator Henry
Rayhons. The Attorney General of Iowa charged 78-year-old Rayhons with rape for having sex with his
own wife, who was afflicted with Alzheimer’s. By the time the jury acquitted Rayhons, he had withdrawn
from the re-election race for a seat he had held for 18 years. See Eugene Volokh, 78-Year-Old Iowa
Ex-Legislator Acquitted of Having Nonconsensual Sex with His Wife, Who was Suffering from Alzheimer’s, WASH. POST (Apr. 23, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/
23/78-year-old-iowa-ex-legislator-acquitted-of-having-nonconsensual-sex-with-his-wife-who-wassuffering-from-alzheimers.

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its hands in the cookie jar? Did Justice Department lawyers rend their garments and
place ashes on their head to mourn this violation of their most fundamental duty of
candor and fairness? No way, no how. Instead, the government argued strenuously
that its ill-gotten conviction should stand because boys will be boys and the evidence
wasn’t material to the case anyway.118
It was only the extraordinary persistence and the courageous intervention of District
Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and
then ordered an investigation of the government’s misconduct119 that forced the Justice
Department to admit its malfeasance—what else could it do?—and move to vacate the
former senator’s conviction. Instead of contrition, what we have seen is Justice Department
officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having “done the right thing.”120
The second case comes from my own experience. The defendant was Debra Milke,
118. See POWELL, supra n.116, at 210 (Judge Emmet Sullivan observed: “Not only did the government
seek to keep [Chad Joy’s] complaint a secret, but the government claimed that the allegations had nothing
to do with the verdict and no relevancy to the defense; that the allegations could be addressed by the
Office of Professional Responsibility’s investigation; and that any misconduct had already been addressed
and remedied during the trial”). Lack of materiality is the Justice Department’s standard defense when it
is caught committing a Brady violation. See DOJ Defends FBI Deputy Director Andrew Weissmann
Against Serious Ethics Charges Pending in NY, SEEKING JUST. (Apr. 26, 2013), http://seeking-justice.org/
doj-defends-fbi-deputy-director-andrew-weissmann-against-serious-ethics-charges-pending-in-ny/ (the “entire . . . defense [was based on] the claim that the Rules of Professional Conduct require prosecutors to
disclose to the defense team only information that is both favorable and material”) (emphasis and internal
quotation marks omitted). Just as they did in Stevens, the prosecutors refused to acknowledge that they
had a duty to turn over exculpatory evidence in United States v. Brown, C.R. No. H-03-363, 2010 WL
3359471 (S.D. Tex. Aug. 2010), affirmed by 650 F.3d 581 (5th Cir. 2011). In Brown, the government
secured a paper-thin conviction against a Merrill Lynch executive for perjury and obstruction of justice
for his grand jury testimony regarding the company’s involvement in a Nigerian barge transaction—all
the while suppressing evidence showing that the executive had testified truthfully. See POWELL, supra
n.116, at 376-77.
119. See Henry F. Schuelke III, Special Counsel, Report to Hon. Emmet G. Sullivan of Investigation
Conducted Pursuant to the Court’s Order, dated Apr. 7, 2009, In re Special Proceedings, No. 1:09-mc-00198EGS (D.D.C. Mar. 15, 2012), available at http://legaltimes.typepad.com/files/Stevens_report.pdf.
120. It’s not clear that the Justice Department learned much from the Stevens debacle, as it refused to
admit that the exculpatory evidence it suppressed in the Stevens case was material to two other
prosecutions that stemmed from the same investigation and involved overlapping issues and witnesses.
See United States v. Kohring, 637 F.3d 895 (9th Cir. 2010); United States v. Kott, 423 Fed. App’x 736
(9th Cir. 2011); see also POWELL, supra n.116, at 231. Holding that the prosecution had yet again violated
Brady by failing to disclose the very evidence deemed material in the Stevens case, a panel of my court
vacated both defendants’ convictions and remanded for a new trial. Judge Betty Fletcher lambasted the
prosecution’s “flagrant, willful bad-faith misbehavior” as “an affront to the integrity of our system of
justice” and found “[t]he prosecution’s refusal to accept responsibility for its misconduct [] deeply
troubling and indicat[ive] that a stronger remedy is necessary to impress upon it the reprehensible nature
of its acts and omissions.” Kohring, 637 F.3d at 914 (Fletcher, J., concurring in part and dissenting in
part); see Kott, 423 Fed. App’x at 738 (Fletcher, J., concurring in part and dissenting in part) (“Despite
their assurances that they take this matter seriously, the government attorneys have attempted to minimize
the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair
trial . . . . The government’s stance on appeal leads me to conclude that it still has failed to fully grasp the
egregiousness of its misconduct, as well as the importance of its constitutionally imposed discovery
obligations.”).
A similar case was recently repeated from Cuyahoga County, Ohio. Cuyahoga Common Pleas Judge
Nancy Russo ruled that three men who had spent almost 20 years in prison for a 1995 murder should be
released pending a new trial, explaining: “A review of the evidence firmly supports the conclusion that
[former Cuyahoga County prosecutor] Carmen Marino maliciously inserted himself into a criminal
proceeding, and that he also sought to suppress evidence from the defendants, that he concealed public
records from the citizenry, and that he subverted the process of justice, thereby violating each of the
defendants’ individual rights to a fair trial.” See OH: The Long Shadow of Misconduct in Cuyahoga
County, The Open File Blog (Apr. 17, 2015), http://www.prosecutorialaccountability.com/oh-the-longshadow-of-misconduct-in-cuyahoga-county/. The current Cuyahoga County chief prosecutor responded
that Marino had done nothing wrong. Id.

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who spent 23 years on Arizona’s death row after a conviction and sentence obtained
in 1990 based on an oral confession she supposedly made to Phoenix police detective
Armando Saldate Jr. as a result of a 20-minute interrogation.121 No one was present in
the room with Milke except Saldate, who refused to record the session, despite his
supervisor’s admonition that he do so.122 When the session ended, Saldate came out
with nothing in writing—not even a Miranda waiver—and claimed Milke had
confessed; Milke immediately and steadfastly denied it. The jury believed Saldate,
but what the prosecution failed to disclose is that Saldate had a long and documented
history of lying in court; he also had a serious disciplinary infraction bearing on his
credibility: He had sought to extort sex from a lone female motorist and then lied
about it when she reported the incident.123 It is not difficult to imagine that a jury may
have been skeptical of Saldate’s testimony that Milke confessed, had it known about
his track record. But the Maricopa County District Attorney’s office did not disclose
this information, although it was party to many of the proceedings where Saldate had
been found to be a liar.
The evidence remained hidden for two decades until an unusually dedicated team
of lawyers and investigators124 spent hundreds of hours digging through all of the
criminal prosecutions in Maricopa County during the era when Saldate had been an
investigator. It winnowed down those cases and focused on those where Saldate
provided evidence.125 And the state doggedly refused to turn over Saldate’s disciplinary record until forced to disgorge it by an order of the district judge who considered
Milke’s federal habeas petition.
After we vacated the conviction and gave Arizona a chance to re-try Milke, the
Arizona Court of Appeals barred any re-trial in an opinion so scathing it made the
New York Times.126 The Court of Appeals described the “long course of Brady/
Giglio violations in this case” as a “flagrant denial of due process” and “a severe stain
on the Arizona justice system”—one that it hoped would “remain unique in the
history of Arizona law.”127 The Arizona Supreme Court recently denied the state’s
petition for review,128 so the Court of Appeals decision stands. Maricopa County
Attorney Bill Montgomery lamented that “[t]he denial of [the] petition for review is a
dark day for Arizona’s criminal justice system.”129
121. See Michael Keifer, supra n.50.
122. See Milke v. Ryan, 711 F.3d 998, 1002 (9th Cir. 2013).
123. See id. at 1007.
124. This team included Milke’s attorney Anders Rosenquist, investigator Kirk Fowler and a dozen
Arizona State University law students. See Steve Krafft, Debra Milke Case: Researchers Discovered
Detective’s History of Misconduct, FOX 10 NEWS (Sept. 21, 2013), http://www.fox10phoenix.com/story/
23447616/2013/09/16/debra-milke-case-research-team-discovered-detectives-misconduct.
125. This gargantuan effort is related in detail in our opinion. See Milke, 711 F.3d at 1018.
126. See Arizona: No Retrial for Woman Freed from Death Row, N.Y. TIMES (Dec. 11, 2014),
http://www.nytimes.com/2014/12/12/us/arizona-no-retrial-for-woman-freed-from-death-row.html?_rϭ1.
127. Milke v. Mroz, 339 P.3d 659, 665-66, 668 (Ariz. App. Ct. 2014). See Jonathan Abel, Buoying
Brady’s Burden, DAILY J. (Mar. 19, 2015) (critiquing the prosecutorial misconduct in Milke’s case as “a
symptom of a much larger problem,” particularly with respect to prosecutors’ reluctance to disclose
Brady evidence concerning police misconduct).
128. Milke v. Mroz, CV-15-0016-PR (Mar. 17, 2015), available at https://perma.cc/QJE7-3FTN?typeϭpdf.
129. News Release: County Attorney Comments on Arizona Supreme Court Ruling in State v. Milke
(Mar. 17, 2015), http://www.maricopacountyattorney.org/newsroom/news-releases/2015/2015-03-17County-Attorney-Comments-on-ASC-Ruling-in-State-v-Milke.html. Montgomery also had unkind things
to say about our opinion, but we can live with that; life tenure is a wonderful thing.
Less than a month later, Montgomery filed a motion to depublish the Court of Appeals’ decision barring
re-trial, which the Arizona Supreme Court denied. Milke v. Mroz, CV-15-0016-PR (Apr. 21, 2015),
available at http://www.azcourts.gov/Portals/21/MinutesCurrent/Mot_042115.pdf. Motions to depublish
opinions that disclose prosecutorial misconduct, or at least to modify them to delete the name of the
offending prosecutor, are common. See, e.g., infra n.193 (discussing the government’s motion in United

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The third case is unfolding as I write these words. It involves the prosecution in
Orange County of Scott Dekraai, who was convicted of having shot several people at
a hair salon and is facing a capital penalty-phase trial. The prosecution presented
evidence from a jailhouse informant, Fernando Perez, whom Dekraai had purportedly
confessed to. It turns out that Perez was a serial informant who had presented similar
confessions.130 Defense counsel challenged the informant, and Superior Court Judge
Thomas Goethals ordered the prosecution to produce evidence bearing on this
claim.131 He eventually found that the Orange County District Attorney’s office had
engaged in a “chronic failure” to disclose exculpatory evidence pertaining to a
scheme run in conjunction with jailers to place jailhouse snitches known to be liars
near suspects they wished to incriminate, effectively manufacturing false confessions.132 The judge then took the drastic step of disqualifying the Orange County
District Attorney’s office from further participation in the case.133 But this result
came only after public defender Scott Sanders “wasted two years uncovering government misconduct, time that he could have spent preparing Dekraai’s defense against
the death penalty.”134 Pulling an elephant’s teeth is surely easier than extracting
exculpatory evidence from an unwilling prosecution team.
These cases are hardly unique or isolated. But they illustrate that three ingredients
must be present before we can be sure that the prosecution has met its Brady
obligations under the law applicable in most jurisdictions. First, you must have a
highly committed defense lawyer with significant resources at his disposal. Second,
you must have a judge who cares and who has the gumption to hold the prosecutor’s
feet to the fire when a credible claim of misconduct has been presented. And, third,
you need a great deal of luck, or the truth may never come out. The misconduct
uncovered in the Milke and Dekraai cases seems to implicate many other cases where
criminal defendants are spending decades in prison. We can only speculate how many
others are wasting their lives behind bars because they lacked the right lawyer or the
right judge or the luck needed to uncover prosecutorial misconduct.
While most prosecutors are fair and honest, a legal environment that tolerates
sharp prosecutorial practices gives important and undeserved career advantages to
prosecutors who are willing to step over the line, tempting others to do the same.
Having strict rules that prosecutors must follow will thus not merely avoid the risk of
letting a guilty man free to commit other crimes while an innocent one languishes his
life away, it will also preserve the integrity of the prosecutorial process by shielding
principled prosecutors from unfair competition from their less principled colleagues.
Here are some potential reforms that would help achieve these goals:
1. Require open file discovery. If the prosecution has evidence bearing on the
crime with which a defendant is being charged, it must promptly turn it over to the
States v. Kojayan).
130. See Paloma Esquivel, Seal Beach Shooting Case Casts Spotlight on Jailhouse Informants, L.A.
TIMES (Apr. 20, 2014), http://www.latimes.com/local/la-me-oc-informant-20140421-story.html#pageϭ1.
131. This courage did not go unpunished. Since February 2014, around the time that Judge Goethals
began looking into prosecutors’ mishandling of informant-related evidence, the Orange County DA’s
office has asked to disqualify him from 57 other criminal cases. See Christopher Goffard, O.C.
Prosecutors Steering Cases Away from Judge Thomas Goethals, L.A. TIMES (Mar. 13, 2015), http://www.
latimes.com/local/orangecounty/la-me-jailhouse-snitch-20150314-story.html.
132. People v. Dekraai, Supplemental Ruling 12ZF0128 (Cal. Sup. Ct. Mar. 12, 2015), available at
http://big.assets.huffingtonpost.com/SUPPLEMENTALRULINGDekraai03122015.pdf.
133. See supra n.7; Christopher Goffard, Orange County D.A. Is Removed from Scott Dekraai Murder
Trial, L.A. TIMES (Mar. 12, 2015), http://www.latimes.com/local/orangecounty/la-me-jailhouse-snitch-201
50313-story.html. The California Attorney General’s Office has since appealed Judge Goethals’s ruling,
and I, of course, express no view as to how the case should be decided.
134. Goffard, supra n.133.

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defense. North Carolina adopted such a rule by statute after Alan Gell was convicted
of murder and sentenced to death, even though the prosecution had statements of 17
witnesses who reported to have seen the victim alive after Gell was incarcerated—
evidence that the prosecution failed to disclose until long after trial.135 Three years
after its passage, the law forced disclosure of evidence that eventually exonerated
three Duke lacrosse players who were falsely accused of rape—and led to the defeat,
disbarment and criminal contempt conviction of Durham District Attorney Mike
Nifong.136 Prosecutors were none too happy with the law and tried hard to roll it back
in 2007 and again in 2012, but the result was an even stronger law that applies not
only to prosecutors but to police and forensic experts, as well it should.137
A far weaker law was proposed by several U.S. Senators following the disgraceful
prosecutorial conduct during the Stevens case. The law would require prosecutors to
disclose all information “that may reasonably appear to be favorable to the defendant.”138 Despite support from both Democrats and Republicans, the bill has made no
progress toward passage because of steadfast opposition from the U.S. Department of
Justice.139 In his 2012 Preface to these pages,140 Attorney General Eric Holder voiced
a strong commitment to ensuring compliance with Brady and related discovery
obligations, but all of the measures he mentions leave prosecutors in charge of
deciding what evidence will be material to the defense—something they cannot
possibly do, because they do not know all the potential avenues a defense lawyer may
pursue, and because it’s not in their hearts to look for ways to help the other side. If
the Department of Justice wants to show its commitment to justice, it should drop its
opposition to the Fairness in Disclosure of Evidence Act and help get it passed into law.
2. Adopt standardized, rigorous procedures for dealing with the government’s
disclosure obligations. For reasons already explained, enforcing the government’s
obligations is critical to achieving a level playing field in criminal cases. But policing
this conduct is exceedingly difficult for the simple reason that “Brady violations . . .
almost always defy detection. The cops know it. The prosecutors know it. The
defense and the defendant have no idea whether Brady material exists.”141 Open file
discovery would go a long way toward ameliorating the problem, but not far enough.
The prosecutor’s file will generally contain what the police and investigators consider
to be inculpatory evidence; a great deal might be left out that is unhelpful to the
135. See EVIDENCEPROFBLOG, Open And Shut: North Carolina Strengthens Its Open Discovery Law
(June 3, 2011), http://lawprofessors.typepad.com/evidenceprof/2011/06/back-in-2004-north-carolinagovernor-mike-easley-signed-a-bill-into-law-that-required-prosecutors-to-share-their-files.html.
136. See Duke Lacrosse Prosecutor Disbarred, CNN (June 17, 2007), http://www.cnn.com/2007/LAW/
06/16/duke.lacrosse/; THE ASSOCIATED PRESS, Day in Jail for Ex-Duke Prosecutor, N.Y. Times (Sept. 1,
2007), http://www.nytimes.com/2007/09/01/us/01nifong.html?_rϭ0&gwhϭD729031CB5109A29647D63
F43549BEA4&gwtϭpay.
137. See N.C. GEN. STAT. § 15A-903(a)(1) (2011), available at http://www.ncleg.net/Sessions/2011/Bills/
House/PDF/H408v2.pdf (“Upon motion of the defendant, the court must order: The State to make
available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and
prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the
defendant.”); EVIDENCEPROFBLOG, supra n.135.
138. Fairness in Disclosure of Evidence Act of 2012, S. 2197, 112th Cong. (2012), available at
https://www.govtrack.us/congress/bills/112/s2197/text.
139. See Video Recording: Ensuring that Federal Prosecutors Meet Discovery Obligations: Hearing on
S. 2197 Before the S. Judiciary Comm., 112th Cong. (2012) (on file with S. Judiciary Comm.) (statement
of James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice opposing the bill: “[I]n reacting to the
Stevens case, we must not let ourselves forget . . . true improvements to discovery practices will come
from prosecutors and agents . . . [i]n other words, new rules are unnecessary.”).
140. Eric Holder Jr., Preface, In the Digital Age, Ensuring that the Department Does Justice iii, 41
GEO. L.J. ANN. REV. CRIM. PROC. (2012).
141. Scott H. Greenfield, The Flood Gates Myth, SIMPLE JUSTICE (Feb. 16, 2015), http://blog.
simplejustice.us/2015/02/16/the-flood-gates-myth/.

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prosecution. Yet the government’s disclosure obligation extends to information that is
in the hands of investigators and places an affirmative obligation on prosecutors to
become aware of exculpatory evidence that is held by others acting on the government’s behalf.142 Ensuring that the government complies with this obligation can’t be
left up to individual prosecutors. Rather, prosecutorial offices must establish firm
policies to ensure compliance.
This does happen from time to time. For example, in 1990, Chief Assistant United
States Attorney Mary Jo White of the Eastern District of New York, Chief of the
Criminal Division Bill Muller and Chief of the Narcotics Unit David Shapiro, among
others, issued a detailed, thoughtful 27-page memorandum analyzing the government’s disclosure obligation at the time and recommending procedures to be followed
when dealing with informants and other government witnesses.143 One of those
recommendations was that the office maintain, and provide to the defense, “information about every case in which an informant has testified as an informant or a
defendant, including the district or state in which the proceedings took place, the
docket numbers and transcripts, where possible . . . and statements by a judge referring
to a witness’s truthfulness and any allegations of double dealing or other misconduct.”144
The memo contained other similarly enlightened recommendations, disclosing a
firm commitment to complying with the spirit, not merely the letter, of Brady and its
progeny. Some years later, in 1999, a similar set of procedures was adopted by the
United States Attorney’s Office in the Northern District of California in a manual
drafted by one of the authors of the EDNY memo who had moved there and served as
head of the Criminal Division.145 But, according to a lawyer who left the office in
2002, the manual was disregarded by the new U.S. Attorney.
Compliance with the government’s disclosure obligations cannot be left to the
political vagaries of 93 U.S. Attorneys’ offices and the countless District Attorneys’
offices across the country. Instead, the U.S. Justice Department and the justice
department of every state must ensure compliance by setting standards and meaningfully disciplining prosecutors who willfully fail to comply. If they will not do it on
their own, Congress and the state legislatures must prod them into it by adopting such
standards by legislation.
3. Adopt standardized, rigorous procedures for eyewitness identification. North
Carolina leads the way, once again, with the Eyewitness Identification Reform Act,146
which does just that. It provides in relevant part that lineups “shall be conducted by
an independent administrator”; “[i]ndividuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately”; the eyewitness must be instructed that he “should not feel compelled to make
an identification”; “at least five fillers shall be included in a [photo or live] lineup, in
addition to the suspect”; and live identification procedures must be recorded on
video.147 This law, too, came as a result of a huge miscarriage of justice when
Jennifer Thompson-Cannino mistakenly identified Ronald Cotton as her rapist.148 He

142. See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
143. See MARY JO WHITE ET AL., BRADY/GIGLIO DISCLOSURES (Oct. 30, 1990) (unpublished internal
memorandum, on file with author).
144. Id. at 2.
145. See AUSA Manual for the Northern District of California (unpublished internal manual, on file
with author).
146. N.C. GEN. STAT. § 15A-284.52 (2012), http://law.justia.com/codes/north-carolina/2012/chapter15a/article-14a/section-15a-284.52.
147. Id.
148. See Innocence Project, Ronald Cotton, http://www.innocenceproject.org/cases-false-imprisonment/
ronald-cotton. The case and the reform that it triggered were featured on a 60 Minutes episode titled

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spent 11 years in prison before he was exonerated by DNA evidence.149 The cases
involving mistaken eyewitness identification are legion.150
4. Video record all suspect interrogations.151 The surprising frequency of false
confessions should make us deeply skeptical of any interrogation we cannot view
from beginning to end. Suspects are frequently isolated and pressured in obvious and
subtle ways, and when the process ends we often have very different accounts of
what happened inside the interrogation room.152 In those circumstances, whom are
we to believe? Most of the time, the judge and juries believe the police. There may
have been a time when we had to rely on such second-hand reports, but technology
has now made this unnecessary: Video recording equipment is dirt cheap, and storage
space for the resulting files is endless. No court should ever admit a confession unless
the prosecution presents a video of the entire interrogation process from beginning to
end.153
It appears that change is underway. Just last year, the Justice Department reversed
its century-old prohibition against recording interrogations and adopted a policy
“establish[ing] a presumption that the Federal Bureau of Investigation (FBI), the
Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody.”154
“Eyewitness: How Accurate is Visual Memory?” See EVIDENCEPROFBLOG, Can I Get A(n Eye) Witness: 60
Minutes Story Exposes Problems with Eyewitness IDs (Mar. 9, 2009), http://lawprofessors.typepad.com/
evidenceprof/2009/03/those-of-you-wh.html.
149. See Innocence Project, supra n.148.
150. For example, in Gantt v. Roe, 389 F.3d 908, 914 n.8 (9th Cir. 2004), the police first showed an
eyewitness a picture of a car owned by an initial suspect named Wilson, which the witness identified as
the car he had seen the morning of the crime. The police then showed the witness a six-photo lineup
including Wilson’s photo, and “sure enough, [the witness] selected Wilson as someone who ‘looked like
the pedestrian he had seen,’” even though Wilson was eventually shown to have zero connection to the
crime. Id.; see also Newsome v. McCabe, 256 F.3d 747, 749 (7th Cir. 2001) (there was ample evidence
that police officers had “encouraged two witnesses to select [the defendant, who was exonerated after 15
years in prison,] from a lineup . . . yet withheld from the prosecutors information about their coaching of
the witnesses and the fact that these witnesses earlier selected pictures from a book of mug shots that did
not contain [the defendant]’s photo”).
151. In fact, why don’t police officers wear body cameras at all times? It would protect the suspect and
the police officer. See Steve Tuttle, Cambridge University Study Shows On-Officer Video Reduces
Use-of-Force Incidents by 59 percent, TASER Int’l (Apr. 8, 2013), https://s3.amazonaws.com/uploads.
hipchat.com/33/3817/rc4wgppgd39lrns/130408%20Rialto%20AXON%20Flex%20Cambridge%20Study.
pdf (the use of “officer worn cameras reduced the rate of use-of-force incidents by 59 percent” and
“utilization of cameras led to an 87.5 percent reduction in complaints” by citizens against police officers);
see also U.S. DEPARTMENT OF JUSTICE, IMPLEMENTING A BODY-WORN CAMERA PROGRAM: RECOMMENDATIONS
AND LESSONS LEARNED (2014), available at http://www.policeforum.org/assets/docs/Free_Online_Documents/
Technology/implementing%20a%20body-worn%20camera%20program.pdf.
152. See, e.g., Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (the defendant claimed his confession
was coerced, while the detectives argued otherwise); Milke, 711 F.3d at 1002 (Detective Saldate claimed
that Milke confessed to the murder during her interrogation, while Milke maintained that Saldate ignored
her request for a lawyer and “embellished and twisted [her] statements to make it sound like she had confessed”).
In both these cases, we lacked access to a video or audio recording to ascertain what really happened.
153. This practice has been adopted in England, Ireland and Australia, where the general rule is that all
interrogations—and not just confessions—must be recorded on audio or video. However, Australia is the
only country that explicitly provides that the consequence for failing to record is inadmissibility of the
contents of the interrogation. See TOM SULLIVAN, COMPENDIUM: ELECTRONIC RECORDING OF CUSTODIAL
INTERROGATIONS, National Association of Criminal Defense Lawyers, July 11, 2014, available at http://www.
nacdl.org/WorkArea/DownloadAsset.aspx?idϭ33287&libIDϭ33256. In addition, a number of states,
including Alaska, Arkansas, Minnesota, Montana and New Jersey, require all interrogations to be
recorded and consider compliance with that requirement a factor in determining whether a statement
made in an interrogation is admissible. See id.
154. See James M. Cole, Memorandum, POLICY CONCERNING ELECTRONIC RECORDING OF STATEMENTS,
May 12, 2014, https://s3.amazonaws.com/s3.documentcloud.org/documents/1165422/doj-interrogation-

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5. Impose strict limits on the use of jailhouse informants. In response to a
devastating report on jailhouse informants issued by the Los Angeles County grand
jury in 1990, the county adopted procedures that required the approval of a committee before informants could be used.155 The use of informants consequently plummeted.156 Even still, the practice of using jailhouse informants as a means of
detecting and perhaps manufacturing incriminatory evidence has continued in California.157 Serial informants are exceedingly dangerous because they have strong incentives to lie or embellish, they have learned to be persuasive to juries and there is no
way to verify whether what they say is true.158 A man jailed on suspicion of a crime
should not be subjected to the risk that someone with whom he is forced to share
space will try for a get-out-of-jail-free card by manufacturing a confession.
6. Adopt rigorous, uniform procedures for certifying expert witnesses and
preserving the integrity of the testing process. There is an effort underway to do
this at the federal level. A 30-member commission headed by the Justice Department
and comprised of forensic scientists, researchers, prosecutors, defense attorneys and
judges was founded two years ago with the goal of “improv[ing] the overall reliability of forensic evidence after instances of shoddy scientific analysis by federal, state
and local police labs helped convict suspects.”159
However, the Justice Department recently made the unilateral decision that “the
subject of pre-trial forensic discovery—i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be
disclosed before they testify in court—is beyond the ‘scope’ of the Commission’s
business and therefore cannot properly be the subject of Commission reports or
discussions in any respect.”160 This prompted the resignation of commission member
Judge Rakoff, who criticized the decision as “a major mistake that is likely to
significantly erode the effectiveness of the Commission” and a reflection of “a
determination by the Department of Justice to place strategic advantage over a search
for the truth.”161 He elaborated: “A primary way in which forensic science interacts
with the courtroom is through discovery, for if an adversary does not know in
advance sufficient information about the forensic expert and the methodological and
evidentiary bases for that expert’s opinions, the testimony of the expert is nothing
more than trial by ambush.”162
Judge Rakoff’s noisy resignation had its desired effect: Two days later, the Justice
Department reversed its decision to bar the commission from considering issues

memo.txt; Michael S. Schmidt, In Policy Change, Justice Dept. to Require Recording of Interrogations,
N.Y. TIMES (May 22, 2014), http://www.nytimes.com/2014/05/23/us/politics/justice-dept-to-reverse-banon-recording-interrogations.html?_rϭ0.
155. See Henry Weinstein, Use of Jailhouse Testimony is Uneven in State, L.A. TIMES (Sept. 21, 2006),
http://articles.latimes.com/2006/sep/21/local/me-jailhouse21.
156. Id.
157. See supra n.107.
158. See Russell D. Covey, Abolishing Jailhouse Snitch Testimony, 49 WAKE FOREST L. REV. 1375,
1376-1409 (2014).
159. See Tim Cushing, Judge Resigns from Forensic Science Committee, Calls Out DOJ’s “Trial By
Ambush” Tactics, TECHDIRT (Feb. 5, 2015), https://www.techdirt.com/articles/20150202/11152629883/judgeresigns-forensic-science-committee-calls-out-dojs-trial-ambush-tactics.shtml; Spencer S. Hsu, U.S. To
Commit Scientists and New Commission To Fix Forensic Science, WASH. POST (Feb. 15, 2013), http://www.
washingtonpost.com/local/crime/us-to-commit-scientists-and-new-commission-to-fix-forensic-science/
2013/02/15/e11c31f8-77b3-11e2-8f84-3e4b513b1a13_story.html.
160. See Full Text: Judge’s Protest Resignation Letter, WASH. POST (Jan. 29, 2015), http://www.
washingtonpost.com/local/full-text-judges-protest-resignation-letter/2015/01/29/41659da6-a7e1-11e4a2b2-776095f393b2_story.html.
161. Id.
162. Id.

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related to pre-trial forensic discovery.163 Judge Rakoff subsequently returned to the
commission, which is now in the process of preparing recommendations for the
Attorney General. But why should the Justice Department have to be buffaloed into
doing the right thing?
7. Keep adding conviction integrity units. We know that there are innocent people
languishing in prison, but figuring out who they are is very difficult—more so if the
prosecution, which has control of whatever evidence there is, is fighting you tooth and nail.
That turns out to be a common response from prosecutors confronted with evidence that
they may have obtained a wrongful conviction. A separate unit within the prosecutor’s
office, with access to all the available evidence, and with no track record to defend, may be
the best chance we have of identifying wrongfully convicted prisoners. More than a dozen
such offices have been established across the country164 and more are being added.165 This
trend needs to continue and escalate. Better yet, there might be a federal agency to
investigate the problem of questionable state convictions. This would reduce the bias that
one state agency might have in favor of another.
In addition, state and federal law ought to be revised to give convicted defendants
full access to DNA and other evidence in the possession of the prosecution. We have
repeatedly witnessed the appalling spectacle of innocent defendants spending many
years fighting to obtain the evidence that would eventually exonerate them. Michael
Morton spent six additional years in prison because District Attorney John Bradley
worked very hard to block Morton’s requests for DNA testing.166 And Anthony Ray
Hinton spent more than fifteen years in prison fighting for the right to test evidence
that eventually set him free.167 Bruce Godschalk lost seven years168; Frank Lee Smith
died in prison waiting for DNA testing that eventually proved his innocence.169
163. See Spencer S. Hsu, Judge Rakoff Returns to Forensic Panel After Justice Department Backs Off
Decision, WASH. POST (Jan. 30, 2015), http://www.washingtonpost.com/local/crime/in-reversal-doj-letsforensic-panel-suggest-trial-rule-changes-after-us-judge-protests/2015/01/30/2f031d9e-a89c-11e4-a2b
2-776095f393b2_story.html.
164. Various District Attorneys’ offices in 12 states, as well as the U.S. Attorney’s Office in Washington, D.C., have established conviction integrity units for the purpose of identifying and investigating
wrongful conviction claims, often in collaboration with local innocence projects. See Center for Prosecutor Integrity, CONVICTION INTEGRITY UNITS, http://www.prosecutorintegrity.org/ (last visited Mar. 18,
2015); CENTER FOR PROSECUTOR INTEGRITY, CONVICTION INTEGRITY UNITS: VANGUARD OF CRIMINAL JUSTICE
REFORM 9 (Dec. 2014), available at http://www.prosecutorintegrity.org/wp-content/uploads/2014/12/
Conviction-Integrity-Units.pdf (noting that these conviction integrity units have produced a total of 61
exonerations, with 33 attributed to the unit in Dallas, Texas); Gardiner, supra n.46 (Brooklyn DA Kenneth
Thompson overhauled the office’s conviction integrity unit and, in a mere 7 months, has ordered 7 murder
convictions overturned).
165. See, e.g., Marisa Gerber, L.A. County D.A. to Create Unit to Review Wrongful-Conviction Claims,
L.A. TIMES (Apr. 22, 2015), http://www.latimes.com/local/lanow/la-me-ln-conviction-review-unit-201504
22-story.html#pageϭ1; Jim Forsyth, Bexar DA Establishes “Conviction Integrity Unit”, WOAI LOCAL
NEWS (Feb. 25, 2015), http://www.woai.com/articles/woai-local-news-sponsored-by-five-119078/bexar-daestablishes-conviction-integrity-unit-13288998/.
166. See Brandi Grissom, supra n.77. In the words of the Houston Chronicle, “The fall of John
Bradley was swift and severe and justified.” Lisa Falkenberg, Tossed from Office, Ex-Williamson DA
Lands Job in Sunny Palau, HOUSTON CHRON. (July 1, 2014), http://www.houstonchronicle.com/news/
columnists/falkenberg/article/Falkenberg-5594473.php. Bradley lost the Republican primary for Williamson County District Attorney in 2012, a post he had held for a decade.
167. Just recruiting the panel of experts, including a former F.B.I. official, to review the forensic
evidence took Hinton and his lawyers almost a decade. See Alan Blinder, supra n.77; Anthony Ray Hinton
Is Free After 30 Years Wrongfully On Death Row, EQUAL JUSTICE INITIATIVE (Apr. 3, 2015), http://www.eji.
org/node/1064.
168. See Sara Rimer, DNA Testing in Rape Cases Frees Prisoner After 15 Years, N.Y. TIMES (Feb. 15, 2002),
http://www.nytimes.com/2002/02/15/us/dna-testing-in-rape-cases-frees-prisoner-after-15-years.html.
169. See The National Registry of Exonerations, Frank Lee Smith, https://www.law.umich.edu/special/
exoneration/Pages/casedetail.aspx?caseidϭ3644. Smith was exonerated on the basis of DNA testing
results 11 months after his death in 2000 and 14 years after his conviction. He had requested DNA testing

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There is no justification for withholding evidence that might set an innocent man
free from unjust imprisonment. Whatever impediments have been interposed to
prevent access to such evidence to convicted defendants and those working on their
behalf ought to be summarily removed by legislation giving them full and swift
access to all evidence in possession of the government. Most states now have laws
allowing post-conviction access to DNA testing, but many are restrictive in practice—
for example, denying requests from inmates who originally confessed to the crime or
imposing a deadline of one year after conviction to file a request.170 Nebraska’s
statute, however, serves as a good example to emulate. It provides:
[A] person in custody pursuant to the judgment of a court may, at any time after
conviction, file a motion, with or without supporting affidavits, in the court that
entered the judgement requesting forensic DNA testing of any biological material that:
(a) Is related to the investigation or prosecution that resulted in such judgment;
(b) Is in the actual or constructive possession or control of the state or is in the
possession or control of others under circumstances likely to safeguard the integrity
of the biological material’s original physical composition; and
(c) Was not previously subjected to DNA testing or can be subjected to retesting
with more current DNA techniques that provide a reasonable likelihood of more
accurate and probative results.171

The statute further provides that DNA tests must be performed in a nationally accredited
laboratory, that the county attorney must submit an inventory to the defense and to the court
of all evidence secured by the state in connection with the case.172
8. Establish independent Prosecutorial Integrity Units. In my experience, the
U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view
its mission as cleaning up the reputation of prosecutors who have gotten themselves
into trouble. In United States v. Kojayan,173 we found that Assistant United States
Attorney Jeffrey Sinek had misled the district court and the jury. The district judge,
who had trusted the AUSA, was so taken aback with the revelation that he barred
further re-prosecution of the defendants as a sanction for the government’s misconduct.174 OPR investigated and gave the AUSA a clean bill of health. And no Justice
Department lawyer has yet been sanctioned for the Stevens prosecution despite the
clear evidence of willful misconduct.175 Prosecutors need to know that someone is
watching over their shoulders—someone who doesn’t share their values and eat
lunch in the same cafeteria. Move OPR to the Department of Agriculture, and
institute similar independent offices in the 50 states.

to no avail for 2 years.
170. See Sue Russell, The Right and Privilege of Post-Conviction DNA Testing, PACIFIC STANDARD (Oct.
4, 2012), http://www.psmag.com/politics-and-law/the-right-and-privilege-of-post-conviction-dna-testing47781; Innocence Project, ACCESS TO POST-CONVICTION DNA TESTING (Oct. 10, 2014), http://www.
innocenceproject.org/free-innocent/improve-the-law/fact-sheets/access-to-post-conviction-dna-testing.
171. See Neb. Rev. Stat. § 29-4120.
172. Id.
173. 8 F.3d 1315, 1322 (9th Cir. 1993).
174. Order on Motion for Acquittal, No. 2:91-cr-00622-ER-2, Dkt. 111 (Mar. 9, 1994) (granting the
motion to dismiss the indictment with prejudice).
175. The Justice Department did give two of its prosecutors, Joseph Bottini and James Goeke, slaps on
the wrists, but the Merit Systems Protection Board recently overturned even these mild sanctions on the
basis that the Justice Department violated its own procedures for investigating alleged misconduct. See
Lisa Rein, Review Board Clears U.S. Prosecutors Accused of Botching Sen. Ted Stevens’s Corruption
Trial, WASH. POST (Jan. 14, 2015), http://www.washingtonpost.com/blogs/federal-eye/wp/2015/01/14/panelclears-u-s-prosecutors-accused-of-botching-sen-ted-stevenss-corruption-trial/. A bungled attempt at sanctions strikes me as worse than no sanctions at all. What does that say about the sincerity and competence
of the Justice Department’s efforts? They can topple a senator and jail Martha Stewart, but they can’t
even spank their own misbehaving lawyers?

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xxxiii

C. Judges
Judges, especially trial judges, can do a great deal to ensure that prosecutors
comply with their constitutional obligations, that only reliable evidence is presented
to juries, that juries are properly instructed and that the trial is generally fair. There
has been an avalanche of exonerations in recent years, many of them of people who
spent half a lifetime or more behind bars,176 and in every one of those cases there was
some sort of proceeding—usually a trial, sometimes a plea—where a judge let an
innocent man be convicted and sent him to prison or death row. When such cases are
reported, the trial judge is always given a pass, as if he were merely a bystander who
watched helplessly while an innocent man had his life ripped away from him. I don’t
buy it. Any judge that inexperienced or incompetent has no business presiding over
anything more significant than small claims court. In criminal cases, judges have an
affirmative duty to ensure fairness and justice, because they are the only ones who
can force prosecutors and their investigators and experts to comply with due process.
Other than being vigilant, compassionate and even-handed, there are specific
measures trial judges can take to ensure fairness in criminal proceedings and avoid
the conviction of innocents.
1. Enter Brady compliance orders in every criminal case. The Brady rule is in
many ways the ultimate guarantor of fairness in our criminal justice system. This is
because police have unparalleled access to the evidence in criminal cases—both
inculpatory and exculpatory. Once a crime is reported and police are on the scene,
they can secure the area and prevent anyone from touching anything until they are
done. They have control of what evidence is sent out for forensic testing; they talk to
witnesses and get their impression before anyone else does. Police and prosecutors,
working together, can lean on witnesses by threatening prosecution or offering
leniency. If there is evidence helpful to the defense, it will generally wind up in the
possession of the police; if witnesses have made helpful statements in their initial
contact with investigators (as happened in the Stevens case) that information will be
in the sole possession of the prosecution. A defense investigator or lawyer plowing
over the same territory after the police have done their job will generally find the
scene denuded of clues and witnesses who are skittish and laconic.
Brady and its progeny therefore impose important obligations on prosecutors,
obligations that are too frequently ignored. In case after case where an innocent
person is exonerated after many years in prison, it turns out that the prosecution
failed to disclose or actively concealed exculpatory evidence. But Brady is not
self-enforcing; failure to comply with Brady does not expose the prosecutor to any
personal risk.177 When Judge Sullivan discovered that the prosecutors in the Stevens
case had obtained their conviction after failing to disclose exculpatory evidence, he
appointed a special counsel, DC attorney Henry Schuelke III, to independently
investigate the prosecutors’ conduct.178 Schuelke determined that the lawyers had
committed willful Brady violations but that the court lacked the power to sanction the
wrongdoers because they had not violated any court-imposed obligations.179
The solution to this problem is for judges to routinely enter Brady compliance
orders, and many judges do so already. Such orders vary somewhat from judge to
176. See The National Registry of Exonerations, supra n.72 and accompanying.
177. See Imbler v. Pachtman, 424 U.S. 409, 430, 431 n.34 (1976) (prosecutors are absolutely immune
for “activities [that are] intimately associated with the judicial phase of the criminal process,” including
the willful suppression of exculpatory evidence).
178. See Henry F. Schuelke III, Special Counsel, Report to Hon. Emmet G. Sullivan of Investigation
Conducted Pursuant to the Court’s Order, supra n.119.
179. See id.

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judge, but typically require the government to turn over, when received, documents
and objects, reports of examinations and tests, expert witness opinions and all
relevant material required by Brady and Giglio.180 Entering such an order holds
prosecutors personally responsible to the court and will doubtless result in far greater
compliance.
2. Engage in a Brady colloquy. This procedure was proposed by Professor Jason
Kreag in an article published last year in the Stanford Law Review Online,181 and it
strikes me as a good idea. The details are outlined in Professor Kreag’s article but the
general idea is that, during pretrial hearings and before a defendant enters a guilty
plea, the trial judge would have a conversation with the prosecutor on the record,
asking him such questions as, “Have you reviewed your file . . . to determine if [it]
include[s] information that is favorable to the defense?” and “Have you identified
information that is favorable to the defense, but nonetheless elected not to disclose
[it] because you believe that the defense is already aware of the information or the
information is not material?”182 There is nothing like having to face a judge on the
record to impress upon lawyers the need to scrupulously comply with their professional obligations. But the questions must be sufficiently specific and detailed to
avoid the mantra, “We’re aware of our Brady obligations and we’ve met them.”
3. Adopt local rules that require the government to comply with its discovery
obligations without the need for motions by the defense. The prosecution need not
present Brady evidence unless the defense asks for it, usually by motion.183 This
seems sort of silly because the defense obviously wants whatever exculpatory evidence the prosecution might have. Surprisingly, few courts have rules that obviate the
need for criminal discovery motions.184 I’m aware of only a dozen or so federal
courts that have local rules either stating that the defense doesn’t need to make a
formal discovery motion, or requiring the government to disclose Brady/Giglio
material within a specific time frame, without mentioning a defense motion.185
An example of such a rule is Eastern District of Washington Local Criminal Rule
16(a), which was adopted just last year. The rule requires the government to make
available within 14 days of arraignment: (1) all of the defendant’s oral and written

180. These orders are routine among all the district judges in the Eastern District of Washington. See,
e.g., Judge Justin Quackenbush, Scheduling Order at 1, No. 2:15-CR-0025-JLQ (E.D. Wa. Mar. 23, 2015)
(“the United States shall forthwith provide, when received, all relevant material required by Brady and by
Giglio”) (citations omitted); Judge Edward Shea, Case Management Order at 4, No. 4:14-CR-6053-EFS
(E.D. Wa. Feb. 13, 2015) (“The Court further presumes a request for discovery and disclosure under
Federal Rules of Evidence 404(b), 608(b), and 609, Brady, Giglio, United States v. Henthorn, 931 F.2d 29
(9th Cir. 1991), and their progeny.”) (citations omitted).
181. Jason Kreag, The Brady Colloquy, 67 STAN. L. REV. ONLINE 47 (2014).
182. Id. at 50.
183. See Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 CASE W.
RES. L. REV. 531, 534 (2007), available at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?articleϭ
1535&contextϭlawfaculty (“Prosecutorial disclosure of Brady evidence is not automatic. Prosecutors are
typically required to provide Brady evidence only upon a request.”); FED. JUDICIAL CTR., TREATMENT OF
BRADY V. MARYLAND MATERIAL IN UNITED STATES DISTRICT AND STATE COURTS’ RULES, ORDERS, AND POLICIES
14 (2007), available at https://bulk.resource.org/courts.gov/fjc/bradyma2.pdf.
184. See LAURAL HOOPER ET AL., FED. JUDICIAL CTR., A SUMMARY OF RESPONSES TO A NATIONAL SURVEY OF
RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND DISCLOSURE PRACTICES IN CRIMINAL CASES:
FINAL REPORT TO THE ADVISORY COMMITTEE ON CRIMINAL RULES (2011), available at http://www.uscourts.gov/
uscourts/RulesAndPolicies/rules/Publications/Rule16Rep.pdf.
185. Courts that require the government to provide criminal discovery without a motion include the
District of Hawaii, District of Kansas, District of New Hampshire, District of New Mexico, Western
District of Texas, Eastern District of Washington and Eastern District of Wisconsin. Courts that imply as
much include the Middle District of Alabama, Southern District of Alabama, Northern District of
California, District of Massachusetts, Northern District of New York and the District of Vermont. See id.
at 18.

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statements, the defendant’s prior record, documents and objects and expert witness
opinions that are in the government’s “possession, custody or control or which may
become known . . . through due diligence”; (2) information from an “electronic
eavesdrop, wiretap or any other interception,” as well as “the authorization for and
information gathered from” a tracking device or video/audio recording used during
investigations; (3) “search warrants and supporting affidavits”; (4) information regarding whether physical evidence intended to be offered in the government’s case-inchief was seized without a warrant; and (5) photographs used in any photo lineup, as
well as information obtained from any other identification technique.186 Rule 16(a)(6)
is a catchall clause that requires the government to “[a]dvise the defendant’s attorney
of evidence favorable to the defendant and material to the defendant’s guilt or
punishment to which defendant is entitled pursuant to Brady and United States v.
Agurs.”187 I have no idea why this isn’t part of the Federal Rules of Criminal
Procedure, but it should be.
4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing. As Judge Nancy Gertner has pointed out on
numerous occasions,188 courts in criminal cases routinely admit expert evidence
lacking the proper foundations and sometimes amounting to little more than guesswork. Few defense lawyers challenge the reliability of expert evidence because few
trial judges grant requests for Daubert hearings.189 And appellate courts affirm such
denials under a very generous abuse of discretion standard.190 With the mounting
number of wrongful convictions based on faulty expert evidence in such diverse
areas as arson and shaken baby syndrome, courts must be far more rigorous in
enforcing Daubert before allowing experts to testify in criminal trials. Failure to hold
a Daubert hearing where the reliability of expert evidence has been credibly challenged should be considered an error of law, as should the refusal to allow a defense
memory expert where the case turns on conflicting recollections of past events.191
5. When prosecutors misbehave, don’t keep it a secret. Defense lawyers who
are found to have been ineffective regularly find their names plastered into judicial
opinions, yet judges seem strangely reluctant to name names when it comes to
misbehaving prosecutors.192 Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion. For example,
the district judge in the Kojayan case, discussed above, could have obviated the
appeal and the entire sordid episode by forcing the Assistant U.S. Attorney to answer
a simple question: “Did Nourian have a plea agreement with the government?”
Defense counsel urged the judge to ask the question but to no avail. It was not until
the oral argument before our court that the AUSA was compelled to disclose that fact:

186. U.S. District Court for the Eastern District of Washington, Local Crim. R. 16(a), available at
http://www.waed.uscourts.gov/sites/default/files/Local_Criminal_Rules-20150303_0.pdf.
187. Id. (citations omitted).
188. See, e.g., Nancy Gertner, Judges Need to Set a Higher Standard for Forensic Evidence, N.Y.
TIMES (Mar. 30, 2015), http://www.nytimes.com/roomfordebate/2015/03/30/robert-durst-handwriting-andjudging-forensic-science/judges-need-to-set-a-higher-standard-for-forensic-evidence; Nancy Gertner, Commentary on the Need for a Research Culture in the Forensic Sciences, 58 UCLA L. REV. 789, 793 (2011).
189. See David E. Bernstein, The Misbegotten Judicial Resistance to the Daubert Revolution, 89
NOTRE DAME L. REV. 27, 50-66 (2013). Moreover, “[s]tatistics substantiate the ubiquity of defense failure
to initiate Daubert challenges, confirming the rarity in the trial courts of any defense challenge to a
prosecutor’s proffered expert testimony.” See also Peter J. Neufeld, The (Near) Irrelevance of Daubert to
Criminal Justice and Some Suggestions for Reform, 95 AM. J. PUB. HEALTH 107, 110 (2005).
190. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).
191. See supra pp. vi-vii and accompanying footnotes.
192. See Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial
Misconduct, 42 U.C. DAVIS L. REV. 1059, 1069-71 & n.21 (2009).

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[Q]: Was there a cooperation agreement?
AUSA: Well, your honor, that is not something that’s in the record.
[Q]: I understand. Was there a cooperation agreement?
AUSA: There was an agreement with the Southern District of New York and
[Nourian], yes.193

Naming names and taking prosecutors to task for misbehavior can have magical
qualities in assuring compliance with constitutional rights. In Baca v. Adams,194 a
panel of our court dealt with a case where both the California trial court and the
California Court of Appeal concluded that a prosecutor lied on the stand, but
nonetheless deemed the error harmless. During our questioning, we asked the Deputy
Attorney General arguing the case whether the lying prosecutor and another untruthful witness had been prosecuted for perjury or otherwise sanctioned. The answer, of
course, was that they had not been. We then suggested that, in resolving the case, we
would write an opinion naming those who had misbehaved and the failure of the state
authorities to take any actions against them. The video of that oral argument made its
way to the blogosphere and has been viewed over 24,000 times.195
Not surprisingly, three weeks afterwards, the California Attorney General wrote
confessing error and requesting that we remand to the district court with instructions
that it grant a conditional writ of habeas corpus.196 The incident, by the way,
illustrates the importance of providing video access to court proceedings. It is far
easier to hide an injustice from public scrutiny if only the judge and a few lawyers
know about it.
Judges who see bad behavior by those appearing before them, especially prosecutors who wield great power and have greater ethical responsibilities, must hold such
misconduct up to the light of public scrutiny. Some of us regularly encourage
prosecutors to speak to their supervisors, even the United States Attorney, to ensure
that inappropriate conduct comes to their attention, with excellent results.197 If judges
have reason to believe that witnesses, especially police officers or government
informants, testify falsely, they must refer the matter for prosecution. If they become
aware of widespread misconduct in the investigation and prosecution of criminal
cases, a referral to the U.S. Department of Justice for a civil rights violation might
well be appropriate.198
193. United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993). The Justice Department reacted with
typical insouciance: It filed a motion to depublish the opinion or, in the alternative, to amend the opinion
to remove the AUSA’s name. USA’s Motion for Depublication, or in the Alternative, Modification of
Opinion w/Declaration of AUSA Sinek, No. 95-50875, Dkt. 51 (Sept. 24, 1993); see supra n.129.
194. No. 13-56132, 2015 WL 412835, at *1 (9th Cir. Jan. 30, 2015).
195. See 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015), https://www.youtube.com/
watch?vϭ2sCUrhgXjH4.
196. Appellee’s Unopposed Motion for Summary Reversal and Remand to the District Court to
Conditionally Grant the Writ, Baca v. Adams (Jan. 29, 2015) (No. 13-56132, Dkt. 33).
197. A memorable example is United States v. Maloney, 755 F.3d 1044 (9th Cir. 2014) (en banc). The
AUSA had sandbagged the defense at trial by making for the first time a factual assertion not in the record
in his rebuttal during closing argument. At oral argument, I asked the AUSA to go back and show the
video of the oral argument to the U.S. Attorney and “see whether this [conduct] is something [she]
want[s] to be teaching [her] line attorneys.” 11-50311 United States v. Maloney, YOUTUBE (Sept. 19,
2013), https://www.youtube.com/watch?vϭHgafGnA4Eow, at 59:00. A little over two weeks later, we
received a letter from Laura Duffy, the U.S. Attorney herself, admitting that the AUSA had acted
improperly and promising to “use the video of the argument as a training tool to reinforce the principle
that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make
every effort to stay well within these rules.” Motion to Summarily Reverse the Conviction, Vacate the
Sentence and Remand to the District Court, United States v. Maloney (Oct. 7, 2013) (No. 11-50311, Dkt.
52-1). Bravo Ms. Duffy!
198. But not always successful. In our opinion vacating Milke’s conviction, we made an express referral of the
matter to the Justice Department based on what appeared to us to be knowing and repeated use of perjured

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D. Miscellaneous
On March 8, 2015, A.M. “Marty” Stroud III, a Shreveport lawyer and former state
prosecutor, published a remarkable piece in the Shreveport Times reflecting on the
case of Glenn Ford, who spent 30 years on death row after being convicted of murder
and sentenced to death in 1984.199 Ford was released after the state disclosed
evidence proving his innocence. Stroud offered a public apology for his conduct in
the case. It is well worth reading in full, but here is the gist of it:
At the time this case was tried there was evidence that would have cleared Glenn
Ford. The easy and convenient argument is that the prosecutors did not know of
such evidence, thus they were absolved of any responsibility for the wrongful
conviction.
I can take no comfort in such an argument . . . . Had I been more inquisitive,
perhaps the evidence would have come to light years ago . . . . My mindset was
wrong and blinded me to my purpose of seeking justice, rather than obtaining a
conviction of a person who I believed to be guilty. I did not hide evidence, I simply
did not seriously consider that sufficient information may have been out there that
could have led to a different conclusion. And that omission is on me.
I did not question the unfairness of Mr. Ford having appointed counsel who had
never tried a criminal jury case much less a capital one. It never concerned me that
the defense had insufficient funds to hire experts . . . .
The jury was all white, Mr. Ford was African-American. Potential AfricanAmerican jurors were struck with little thought about potential discrimination . . . . I
also participated in placing before the jury dubious testimony from a forensic
pathologist that the shooter had to be left handed . . . . All too late, I learned that the
testimony was pure junk science at its evil worst.
In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full
of myself. I was not as interested in justice as I was in winning. To borrow a phrase
from Al Pacino in the movie “And Justice for All,” “Winning became everything.”200

What is remarkable about Stroud’s statement is not that he gained a conviction and
death sentence for a man that turned out to be innocent. Or that that man spent three
decades caged like an animal. That kind of thing is all too common. Nor is there
anything unusual about the confluence of errors that led to the wrongful conviction—
failure to uncover exculpatory evidence, inexperienced defense lawyers, race-based
jury selection, junk science, and a judge who passively watched the parade and sat on
his thumbs. The same goes for a prosecutorial attitude of God-like omniscience and
unwillingness to entertain the possibility that the wrong man is being prosecuted.
These things happen all the time in case, after case, after case.
What is unusual—unique really—is Stroud’s willingness to accept personal responsibility for the calamity he helped inflict on Glenn Ford and his family—his willingtestimony by Detective Saldate in a large number of criminal prosecutions. Milke, 711 F.3d at 1019-20. The Justice
Department declined to investigate the matter, yet evidence that Milke’s case was not an isolated incident was
readily available. For example, in a recent letter to the editor complaining about Milke’s release, a colleague of
Saldate’s in the 1980s stated: “I am painfully aware that Detective Armando Saldate and his now deceased partner
were notorious for bending the rules, especially when it came to suspect interviews. Other homicide detectives
attempted to make supervisors aware of these serious issues. They were met with disdain and angrily told that if
they couldn’t be a team player, they could find another place to work. Nothing else was said for fear of retaliation,
and no corrective steps were taken.” See Antonio Morales Jr., Op-ed, Milke Doesn’t Deserve Her Freedom, AZ
CENTRAL (Mar. 20, 2015), http://www.azcentral.com/story/opinion/letters/2015/03/19/milke-deserve-freedom/25057
361/. If evidence of such widespread misconduct in the highest level of a metropolitan police department is
unworthy of even an investigation by the U.S. Justice Department, one must wonder what is.
199. A.M. “Marty” Stroud III, RE: “State Should Give Ford Real Justice”, SHREVEPORT TIMES, Mar. 8,
2015, at 6D, http://www.shreveporttimes.com/story/opinion/readers/2015/03/20/lead-prosecutor-offersapology-in-the-case-of-exonerated-death-row-inmate-glenn-ford/25049063/.
200. Id.

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ness to embrace this as his personal failure, not just an unfortunate failure of the
system. Most prosecutorial attitudes run the gamut from “that’s why they put erasers
on pencils” to “they must be guilty of something.” Everyone else in the system,
starting with trial judges, absolves himself of personal responsibility when a heinous
failure occurs. We could do with a lot less of that.
In a sense, however, the system is responsible because it places a great deal of
power and responsibility in young, ambitious lawyers, like Stroud, who have every
incentive to close their eyes to the possibility of innocence, to testilying by police, to
bogus experts and to suggestive eyewitness identification procedures. A prosecutor
certainly does not help advance his career by providing to the defense evidence that
his star witness made a statement directly contrary to his testimony before the police
started leaning on him—as happened in the shameful prosecution and wrongful
conviction of Senator Stevens. Faced with a remote possibility of being found out,
and the likelihood that nothing bad will happen even if they are, many prosecutors
will turn a blind eye or worse. And that’s how miscarriages of justice happen.
Some of the suggestions above will help ameliorate the problem, but there are
some other reforms that require either legislation, a ruling by the Supreme Court,
action by parties not involved in the criminal justice process or a constitutional
amendment. These may be more difficult to achieve, but here they are nonetheless:
1. Abandon judicial elections. Professor Monroe Freedman made the case for the
unconstitutionality of elected state judges in his succinct monograph, The Unconstitutionality of Electing State Judges.201 He relied on the separate opinions of Justices
O’Connor and Ginsburg in Republican Party of Minnesota v. White,202 citing Justice
O’Connor’s opinion for “studies showing that judges who face elections are far more
likely to override jury sentences of life without parole and impose the death penalty.”203 The difficulty confronting any judge who faces an election is compounded
by the well-known practice of prosecutors enlisting one of their own to oppose a
judge that they consider to be pro-defense.204 And in at least 19 states, lawyers may
also “paper” or “affidavit” a judge by filing a peremptory challenge to disqualify a
judge they deem “prejudiced” against their interests, without having to submit any
explanation or proof of prejudice.205 This tactic can be used en masse to effectively
preclude a judge from hearing any criminal cases, and is precisely what appears to be
happening to the judge in Orange County who removed the District Attorney’s office
from a high-profile case because of repeated instances of misconduct.206 While many,

201. Monroe H. Freedman, The Unconstitutionality of Electing State Judges, 26 GEO. J. LEGAL ETHICS
217 (2013).
202. 536 U.S. 765 (2002).
203. Freedman, supra n.201, at 218.
204. See Jennifer Emily, Dallas DA Accused of Pushing Prosecutors to Run Against Judges, THE
DALLAS MORNING NEWS (Oct. 7, 2013), http://www.dallasnews.com/news/politics/local-politics/20131006da-accused-of-pushing-prosecutors-to-run-against-incumbent-judges.ece (six prosecutors from the Dallas
County DA’s office were running for state district judge benches, five of whom were challenging
incumbent Democratic judges).
205. See Michelle Quinn, District Attorney’s Boycott of a Judge Raises Issues, N.Y. TIMES (Mar. 20,
2010), http://www.nytimes.com/2010/03/21/us/21sfcourt.html?pagewantedϭall&_rϭ0 (Santa Clara County
DA disqualified one judge from 100 cases as retaliation for the judge freeing a child molester after the
deputy DA provided false testimony and withheld exculpatory evidence); Maureen Cavanaugh & Pat
Finn, San Diego’s Great Judge Boycott, KPBS (Feb. 22, 2010) http://www.kpbs.org/news/2010/feb/22/sandiegos-great-judge-boycott/ (discussing the boycott of certain judges by the San Diego County DA’s
office after those judges had either made rulings against the prosecution or criticized prosecutors for
failing to disclose exculpatory evidence).
206. Prosecutors from the Orange County DA’s office made blanket disqualification requests against
Judge Thomas Goethals in his other criminal cases as soon as he began probing into the misuse of
jailhouse informants in the Dekkrai murder trial. See supra n.131; Eric Hartley, Prosecutors Avoiding

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perhaps, most judges resist the pressure and remain impartial, the fact that they may
have to face the voters with the combined might of the prosecution and police groups
aligned against them no doubt causes some judges to rule for the prosecution in cases
where they would otherwise have ruled for the defense.207
2. Abrogate absolute prosecutorial immunity. In Imbler v. Pachtman,208 a
divided Supreme Court held that prosecutors are absolutely immune from damages
liability for misconduct they commit when performing the traditional activities of a
prosecutor. Imbler was not a constitutional ruling; the Court was interpreting 42
U.S.C. § 1983. And it was certainly not a result compelled by the language of the
statute; section 1983 says nothing about immunity. Rather, Imbler reflected a pure
policy judgment that prosecutors needed complete freedom from liability in order to
properly discharge their functions. Writing for himself and two others, Justice White
would have adopted a more limited immunity rule that would have held prosecutors
liable for certain kinds of deliberate misconduct such as willfully failing to disclose
Brady and Giglio evidence.209
Under Imbler, prosecutors cannot be held liable, no matter how badly they
misbehave, for actions such as withholding exculpatory evidence, introducing fabricated evidence, knowingly presenting perjured testimony and bringing charges for
which there is no credible evidence. All are immune from liability. A defense lawyer
who did any such things (or their equivalents) would soon find himself disbarred and
playing house with Bubba. The Imbler majority seemed reassured by the possibility
that rogue prosecutors will be subject to other constraints:
We emphasize that the immunity of prosecutors from liability in suits under [§] 1983 does
not leave the public powerless to deter misconduct or to punish that which occurs. This
Court has never suggested that the policy considerations which compel civil immunity for
certain governmental officials also place them beyond the reach of the criminal law . . . .
Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive
persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil
liability is the only way to insure that prosecutors are mindful of the constitutional rights of
persons accused of crime.210

This argument was dubious in 1976 and is absurd today. Who exactly is going to
prosecute prosecutors? Despite numerous cases where prosecutors have committed willful
misconduct, costing innocent defendants decades of their lives, I am aware of only two who
have been criminally prosecuted for it; they spent a total of six days behind bars.211
Judge They Say Is Biased, O.C. REG. (June 13, 2014), http://www.ocregister.com/articles/prosecutors-6182
07-goethals-judge.html?pageϭ1. The Orange County Bar Association took notice and passed Resolution
15R-01, titled “Independence of the Judiciary,” in which it stated that it “publicly disapproves of the use
of tactics which are, or have the appearance of being, punitive and retaliatory towards any sitting judge,”
and that “the excessive use of [the affidavit procedure] against a particular judge can be . . . inappropriate
. . . and could be construed as an attempt to intimidate not just that judge, but the entire judiciary, who
will and must remain independent.” See Orange Cnty. Bar Ass’n, Resolution 15R-01: Independence of the
Judiciary (Mar. 27, 2015), http://www.ocbar.org/Portals/0/pdf/press_releases/2015/2015_03_30_OCBA_
ResolutionR15-01.pdf.
207. See supra n.129 (again, life tenure is a wonderful thing).
208. 424 U.S. 409, 430, 431 n.34 (1976).
209. Id. at 438-45 (White, J., concurring). In fact, on May 1, 2015, the Supreme Court of Canada
reversed course and embraced a similar rule. See Henry v. British Columbia (Attorney General), [2015]
S.C.C. 24 (Can.) (government may be sued when prosecutors intentionally withhold evidence favorable
to the defense).
210. Id. at 428-29.
211. Texas district attorney Ken Anderson, see supra n.77, went to jail for five days (serving only half
of his 10-day sentence) for hiding evidence that put Michael Morton in prison for a quarter of a century.
And he got even that much because he was found in contempt of a Brady compliance order entered by the

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There have been a few instances of professional discipline against prosecutors,
though even that has been much less than against similarly-situated private lawyers.212 By and large, however, professional organizations are exceedingly reluctant
to impose sanctions on prosecutors for misconduct in carrying out their professional
responsibilities.213 Sidney Powell’s book, Licensed to Lie, illustrates exhaustively the
futility of getting bar disciplinary boards to impose professional discipline for
misconduct committed in the course of criminal prosecutions.214
Despite this dismal track record refuting the bland assurances of the Imbler majority that
prosecutors will be subject to other forms of control, even if damages lawsuits are not
available, the Court has reaffirmed Imbler on numerous occasions. Most recently, in its
unanimous opinion in Van de Kamp v. Goldstein,215 the Court denied compensation to the
petitioner, Thomas Goldstein, who had spent 24 years in prison based on the testimony of
notorious jailhouse snitch Edward Fink. Prosecutors used Fink as a utility infielder in
numerous cases, and he somehow always managed to testify that the defendant had
confessed.216 Unmoved, the Court held the prosecutors and their supervisors were all
protected by absolute immunity and Mr. Goldstein can pound sand.217
What kind of signal does this send to young prosecutors who are out to make a
name for themselves? I think it signals that they can be as reckless and self-serving as
they want, and if they get caught, nothing bad will happen to them. Imbler and Van de
Kamp should be overruled. It makes no sense to give police, who often have to act in
high pressure situations where their lives may be in danger, only qualified immunity218 while giving prosecutors absolute immunity. It is a disparity that can only be

trial judge in that case. See Texas Prosecutor to Serve 10 Days for Innocent Man’s 25-Year Imprisonment,
THE GUARDIAN (Nov. 8, 2013), http://www.theguardian.com/world/2013/nov/08/texas-prosecutor-kenanderson-michael-morton-trial. None of the prosecutors who concealed evidence in the Stevens criminal
case were prosecuted, and the two who were initially disciplined by the DOJ got their sanctions
overturned by the Merit Systems Protection Board. See supra n.175. Mike Nifong, the district attorney
who committed widespread misconduct when prosecuting the Duke Lacrosse players, was convicted of
criminal contempt but sentenced to just one day in jail. See supra n.136. The list of prosecutors who have
committed misconduct causing serious, lasting harm to innocent people and who have not themselves
been criminally prosecuted is very long indeed. I am aware of no prosecutors, other than Ken Anderson
and Mike Nifong, who have been convicted of prosecutorial misconduct.
212. For example, Trinidad County, Colorado District Attorney Frank Ruybalid pleaded guilty to over
a dozen instances of professional misconduct and had his law license suspended for six months, but that
suspension was immediately suspended, even though “private attorneys ‘have received sanctions more
severe than a six-month stayed suspension’ for conduct similar to Ruybalid’s.” See Alan Prendergast,
Frank Ruybalid, Trinidad District Attorney, Cops a Plea, Admits Misconduct, WESTWORD (Jan. 29, 2015),
http://www.westword.com/news/frank-ruybalid-trinidad-district-attorney-cops-a-plea-admits-misconduct6282816 (quoting the settlement agreement).
213. Nor have courts been eager to uphold sanctions imposed by professional organizations. See, e.g.,
In re Kline, No. 13-BG-851, at 2-3 (D.C. Ct. App. Apr. 9, 2015), available at http://www.dccourts.gov/
internet/documents/13-BG-851.pdf (despite finding that “Bar Counsel proved by clear and convincing
evidence that [the prosecutor] intentionally failed to disclose information in violation of [a D.C. Rule of
Professional Conduct prohibiting prosecutors from intentionally withholding exculpatory evidence from
the defense in a criminal case], the panel concluded that “given the confusion regarding the correct
interpretation of a prosecutor’s obligations under the rule, sanctioning [the prosecutor] would be
unwarranted”). One can hope that prosecutors in the District of Columbia will no longer be confused as to
their disclosure obligations after In re Kline.
214. See POWELL, supra n.116, at 397-401.
215. 555 U.S. 335 (2009).
216. Id. at 339.
217. Id. at 349 (“[W]here a § 1983 plaintiff claims that a prosecutor’s management of a trial-related
information system is responsible for a constitutional error at his or her particular trial, the prosecutor
responsible for the system enjoys absolute immunity just as would the prosecutor who handled the
particular trial itself.”).
218. See, e.g., Messerschmidt v. Millender, 132 S. Ct. 1235 (2012); see also Devereaux v. Abbey, 263
F.3d 1070 (9th Cir. 2001) (en banc) (police have only qualified immunity for allegedly fabricating

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xli

explained by the fact that prosecutors and judges are all part of the legal profession
and it’s natural enough to empathize with people who are just like you.219 If the
Supreme Court won’t overrule Imbler and Van de Kamp, Congress is free to do it by
amending 42 U.S.C. § 1983.
3. Repeal AEDPA § 2254(d). Prior to AEDPA taking effect in 1996, the federal
courts provided a final safeguard for the relatively rare but compelling cases where
the state courts had allowed a miscarriage of justice to occur. One of the betterknown examples of this is the case of Ron Williamson, who in 1994 was just 5 days
away from being executed for a murder of which he was eventually cleared by DNA
evidence. He was saved when U.S. District Judge Frank Seay entered a stay of
execution that began a process culminating in Williamson’s exoneration. The case is
described in depth in John Grisham’s non-fiction book, The Innocent Man.220
The federal court safety-value was abruptly dismantled in 1996 when Congress
passed and President Clinton signed the Antiterrorism and Effective Death Penalty
Act. Hidden in its interstices was a provision that has pretty much shut out the federal
courts from granting habeas relief in most cases, even when they believe that an
egregious miscarriage of justice has occurred.221
We now regularly have to stand by in impotent silence, even though it may appear
to us that an innocent person has been convicted.222 Not even the Supreme Court may
act on what it believes is a constitutional violation if the issue is raised in a habeas
petition as opposed to on direct appeal.223 There are countless examples of this, but

evidence in a criminal case); Gantt v. City of Los Angeles, 717 F.3d 702 (9th Cir. 2013) (same).
219. Though it raises other questions, it’s also worth taking another look at absolute judicial immunity.
See Timothy M. Stengel, Absolute Judicial Immunity Makes Absolutely No Sense: An Argument for an
Exception to Judicial Immunity, 84 TEMP. L. REV. 1071 (2012) (arguing that absolute judicial immunity
should be removed in cases where malice or corruption is substantiated).
220. See JOHN GRISHAM, THE INNOCENT MAN: MURDER AND INJUSTICE IN A SMALL TOWN (2006).
221. Namely, 28 U.S.C. § 2254(d) provides that a writ of habeas corpus shall not be granted unless the
adjudication of the claim on the merits in state court “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
222. See, e.g., Murdoch v. Castro, 609 F.3d 983 (9th Cir. 2010) (en banc) (Kozinski, J., dissenting) (the
plurality applied AEDPA deference and denied habeas relief to a petitioner who had steadfastly maintained his innocence and had “strong proof” that he was in fact innocent). It’s no surprise that courts have
“performed miserably in ferreting out the innocent.” See Adam Liptak, Study of Wrongful Convictions
Raises Questions Beyond DNA, N.Y. TIMES (July 23, 2007), http://www.nytimes.com/2007/07/23/us/23bar.
html?_rϭ1&&gwhϭD810E36AF10FBA1A836653D78673C1C8&gwtϭpay. Not only did the Supreme
Court decline to hear the appeals of 30 of 31 prisoners who were later exonerated by DNA evidence, but
it ruled against the prisoner in the one appeal it did hear. See Brandon L. Garrett, Judging Innocence, 108
COLUM. L. REV. 55, 95 (2008).
223. Compare Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J., concurring) (“In my view,
this is a case in which Congress’ instruction to defer to the reasonable conclusions of state-court judges
makes a critical difference. See 28 U.S.C. § 2254(d)(1). Were I a California state judge, I would likely
hold that Payton’s penalty-phase proceedings violated the Eighth Amendment . . . . Nonetheless, in
circumstances like the present, a federal judge must leave in place a state-court decision unless the
federal judge believes it is ‘contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.’ § 2254(d)(1) . . . . I cannot say
that the California Supreme Court decision fails this deferential test.”), and Sessoms v. Grounds, 776 F.3d
615, 631 (9th Cir. 2015) (Kozinski, C.J., reluctantly dissenting) (“But what we must decide is not what
Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to
conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an
attorney . . . . I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison,
half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are
bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were
violated.”), with Hinton v. Alabama, 134 S. Ct. 1081, 1083 (2014) (per curiam) (vacating the state court’s
judgment on direct appeal upon concluding that Anthony Ray Hinton’s trial attorney “rendered constitution-

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perhaps the best illustration is Cavazos v. Smith,224 the case involving a grandmother
who had spent 10 years in prison for the alleged shaking death of her infant
grandson—a conviction secured by since-discredited junk science. My court freed
Smith, but the Supreme Court summarily reversed (over Justice Ginsburg’s impassioned dissent) based on AEDPA.225
AEDPA is a cruel, unjust and unnecessary law that effectively removes federal
judges as safeguards against miscarriages of justice. It has resulted and continues to
result in much human suffering. It should be repealed.226
4. Treat prosecutorial misconduct as a civil rights violation. The U.S. Justice
Department seems ready enough to pursue charges of civil rights violations in cases
where police have engaged in physical violence,227 but far more reluctant to pursue
misbehaving prosecutors.228 But prosecutors can wreck and take lives just like police,
and their actions are often far more premeditated than those of officers who may
over-react to a belligerent suspect. And when a prosecutorial office uses known liars
as jailhouse snitches, or presents evidence from cops they know are prone to fabricate
evidence or conduct suggestive lineups or eyewitness identifications, they are committing civil rights violations with dire consequences for their victims. It is precisely
such alternative enforcement mechanisms that the Supreme Court hypothesized in
Imbler in deciding to give prosecutors absolute immunity.229 One can only hope that
the U.S. Department of Justice will reconsider what appears to be its policy against
investigating prosecutorial misconduct in criminal cases as potential civil rights violations.
5. Give criminal defendants the choice of a jury or bench trial. Under current
law, either the defendant or the prosecution can insist on trying the case before a
jury.230 Conventional wisdom is that defendants prefer juries because it only takes
one juror to hang, but experienced defense lawyers know that some kinds of cases
can best be tried before a judge—particularly where a defendant wishes to testify but

ally deficient performance,” see supra n.77.
224. 132 S. Ct. 2 (2011).
225. Citing 2254(d), the Supreme Court explained: “Doubts about whether Smith is in fact guilty are
understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether
the State’s theory was correct. The jury decided that question, and its decision is supported by the
record.” 132 S. Ct. at 7.
226. In last year’s Preface, Shon Hopwood details other ill effects of AEDPA’s heartless regime. Shon
Hopwood, Preface, Failing to Fix Sentencing Mistakes: How the System of Mass Incarceration May Have
Hardened the Hearts of the Federal Judiciary, 43 GEO. L.J. ANN. REV. CRIM. PROC. (2014).
227. For example, the Justice Department brought civil rights charges against the four LAPD officers
involved in the brutal beating of Rodney King. See James H. Andrews, US Justice is on Trial in Rodney
King Case, CHRISTIAN SCI. Monitor (Mar. 15, 1993), http://www.csmonitor.com/1993/0315/15121.html.
And while it ultimately decided not to prosecute police officer Darren Wilson for the shooting death of
Michael Brown, the Justice Department conducted an extensive investigation which culminated in a
86-page report. See UNITED STATES DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
REPORT REGARDING THE CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON,
MISSOURI POLICE OFFICER DARREN WILSON (Mar. 4, 2015), available at http://apps.washingtonpost.com/g/
documents/national/department-of-justice-report-on-the-michael-brown-shooting/1436/.
228. See supra n.198 (discussing the Justice Department’s decision not to investigate the prosecutors’
misconduct in Milke).
229. See Imbler, 424 U.S. at 428 (“This Court has never suggested that the policy considerations
which compel civil immunity for certain governmental officials also place them beyond the reach of the
criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished
criminally for willful deprivations of constitutional rights . . . .”).
230. See Fed. R. Crim. P. 23(a) (“If the defendant is entitled to a jury trial, the trial must be by jury
unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court
approves.”).

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xliii

fears impeachment with prior misdeeds.231 The prosecution has many institutional
advantages, not the least being that they get to go first and thus have their theory of
the case laid out before the defendant can present any evidence at all.232 I would think
it fair to let the defendant get the choice of judge or jury. Because the government has
no constitutional right to a jury, but the defendant does, there should be no constitutional impediment to such a rule.233
And while I’m at it, I’d amend Federal Rule of Evidence 609(a) (and its state
analogues) to preclude impeachment of a criminal defendant testifying on his own
behalf with evidence of his past criminal convictions.234 Too many defendants are put
to the grim choice of either telling their side of the story and having the jury hear of
their prior misdeeds, or standing mute and seeming to acquiesce in the prosecution’s
case.235 If the defendant lies, a skilled prosecutor will trip him up on cross; there is no
need to paint him as a monster before the jury.236
6. Conduct in depth studies of exonerations. The recent spate of exonerations,
especially those obtained by DNA evidence, gives us a window as to what can go
wrong in our criminal justice system. It is an important database that ought to make
us doubt the supposed infallibility of our criminal justice process. But it can also be a
rich source of useful information about why criminal prosecutions go wrong, why
police focus on a single innocent suspect, why prosecutors pursue cases without
asking hard questions about whether the defendant is truly guilty and why judges and
juries are so badly misled in so many cases. This should not be a matter left to
academia, although much good work is done there now. Far better, though, if the
federal government devoted, say, the cost of one aircraft carrier to analyze and dissect
these cases and try to figure out what went wrong and what we can do better in the
future. Thus far, the government has only made such an inquiry into a handful of
cases.237 This effort needs to be expended on a much larger scale, because even a
single wrongful conviction is one too many.

231. See Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L.
REV. 403, 482 (1992) (many defendants do not testify because “[t]he threat of felony conviction
impeachment can be a powerful deterrent to taking the witness stand”).
232. See supra n.43 and accompanying text (discussing the advantage of going first).
233. See Adam H. Kurland, Providing a Federal Criminal Defendant with a Unilateral Right to a
Bench Trial: A Renewed Call to Amend Federal Rule of Criminal Procedure 23(a), 26 U.C. DAVIS L. REV.
309 (1993) (fleshing out the arguments in favor of giving the defendant a unilateral right to choose
between a bench or jury trial).
234. See Fed. R. Evid. 609(a)(1)(B) (evidence of a criminal conviction for purposes of attacking a
witness’s character for truthfulness “must be admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant”).
235. See Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors
Use Prior Conviction Evidence to Decide Guilt, 9 LAW & HUM. BEHAV. 37, 47 (1985) (“[T]he presentation
of the defendant’s criminal record [under Rule 609] does not affect the defendant’s credibility, but does
increase the likelihood of conviction, and the judge’s limiting instructions do not appear to correct that
error. People’s decision processes do not employ the prior-conviction evidence in the way the law wishes
them to use it. From a legal policy viewpoint, the risk of prejudice to the defense is greater than the
unrealized potential benefit to the prosecution.”).
236. Rape shield laws and Federal Rule of Evidence 412 are based on similar policy considerations.
See 124 Cong. Rec. 36,256 (1978) (statement of Sen. Biden) (“The enactment of [the Privacy Protection
for Rape Victims Act of 1978, of which Federal Rule of Evidence 412 was the centerpiece,] will eliminate
the traditional defense strategy . . . of placing the victim and her reputation on trial in lieu of the
defendant [and] end the practice . . . wherein rape victims are bullied and cross-examined about their
prior sexual experiences[, making] the trial almost as degrading as the rape itself.”).
237. The National Institute of Justice recently sponsored in-depth analyses on three high-profile legal
mistakes in an effort to “tease out the sequence of factors that might have contributed to a mistake and,
perhaps, lead to a more accident-proof legal system”; the study found that “[t]here was no single bad
actor,” with most cases involving “a series of small slip-ups that cascaded into an important mistake.” See

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7. Repeal three felonies a day for three years.238 Professor Tim Wu of Columbia
Law School recounted a “darkly humorous game” played by Assistant U.S. Attorneys
in the Southern District of New York:
[S]omeone would name a random celebrity—say, Mother Theresa or John Lennon.
It would then be up to the junior prosecutors to figure out a plausible crime for
which to indict him or her. The crimes were not usually rape, murder, or other
crimes you’d see on Law & Order but rather the incredibly broad yet obscure
crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes
like “false statements” (a felony, up to five years), “obstructing the mails” (five
years), or “false pretenses on the high seas” (also five years). The trick and skill lay
in finding the more obscure offenses that fit the character of the celebrity and carried
the toughest sentences.239

A big reason prosecutors have so much leverage in plea negotiations is that there are
many laws written in vague and sweeping language, inviting prosecutorial adventurism.240 It is thus difficult for individuals charged with a crime to know how to defend
themselves and to gauge the likelihood of being acquitted.
Even if ultimately vindicated, the process of being charged itself takes a massive
toll. Arthur Andersen, guilty of no crime according to the Supreme Court, nevertheless was put out of business, leaving its 85,000 employees world-wide without
jobs.241 Senator Stevens lost his Senate seat even though his prosecution was riddled
with misconduct and the Justice Department eventually dismissed all charges. The
list of lives and businesses ruined by baseless prosecutions is long.242 And, in the
words of George Will, “as the mens rea requirement withers when the quantity and
complexity of laws increase, the doctrine of ignorantia legis neminem excusat—
ignorance of the law does not excuse—becomes problematic. The regulatory state is
rendering unrealistic the presumption that a responsible citizen should be presumed
to have knowledge of the law.”243 Repealing a thousand vague and over-reaching
laws and replacing them with laws that are cast narrowly to punish morally reprehensible conduct and give fair notice as to what is criminal may not solve the problem
altogether, but it would be a good start.
CONCLUSION
‘Nuff said.

Douglas Starr, A New Way to Reform the Judicial System, The NEW YORKER (Mar. 31, 2015), http://www.
newyorker.com/news/news-desk/the-root-of-the-problem.
238. Harvey Silverglate estimates that a typical American commits three felonies a day due to
overbroad laws. Silverglate, supra n.58; see Kozinski & Tseytlin, supra n.58, at 44Ϫ45 (“[M]ost
Americans are criminals and don’t know it, or suspect they are but believe they’ll never get prosecuted.”).
239. Tim Wu, American Lawbreaking, SLATE (Oct. 14, 2007), http://www.slate.com/articles/news_and_
politics/jurisprudence/features/2007/american_lawbreaking/introduction.html.
240. See supra n.57 (discussing examples).
241. See Andersen Died in Vain, CHI. TRIB. (Mar. 14, 2012), http://articles.chicagotribune.com/201203-14/opinion/ct-edit-andersen-20120314_1_andersen-s-professional-standards-group-andersen-casefounder-arthur-andersen.
242. See, e.g., Goyal, 629 F.3d at 922 (Kozinski, C.J., concurring) (“This case . . . has no doubt
devastated the defendant’s personal and professional life.”); POWELL, supra n.116, at 52 (“Jim Brown[,
see supra n.118,] was devastated. His entire life and that of his family had been turned upside down. Now
he was facing prison time. He was in shock.”).
243. Will, supra n.58 (citing Michael Anthony Cottone, Rethinking Presumed Knowledge of the Law in
the Regulatory Age, 82 TENN. L. REV. 137 (2014)).