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Hofstra Law Review

Article Title

Ending Innocence Denying

Authors

Lara Bazelon

Abstract

Prosecutors, the most powerful actors in the criminal justice system, also have the most difficult job: they must be "ministers of justice." A prosecutor's core mission is to vindicate the truth, rather than strive to "win" by accumulating a track record of convictions. When evidence somes to light suggesting that a wrongful conviction has occurred, a prosecutor's ethical obligation requires admitting to a terrible mistake and working to undo it. Many conscientious prosecutors accept this responsibility and confess to their errors. But too many do not. They insist, in the face of overwhelming evidence to the contrary, that wrongfully convicted people are in fact guilty. These prosecutors actively work to delay justice. Some are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators.

Much has been written about how to change the culture that leads to prosecutors' reflexive doubling-down on wrongful convictions: public shaming in judicial opinions, more rigorous ethical training in law school and on the job, and sharper oversight by state bars. These measures are necessary, but they are insufficient. To curtail innocence-denying, the narrative must change about what it means to be a "good prosecutor," historically defined as a tough-on-crime fighter whose overriding goal is to obtain and preserve convictions. This mindset pits a prosecutor's self-interest in getting and preserving guilty verdicts against his or her ethical obligations, which require confessing error and reversing course where credible evidence of innocence exists.

The explosion of interest in wrongul conviction cases, narrated as true crime stories in podcasts, documentaries, and other media, has begun to erode the power of traditional narrative. The public is now better informed about the ethical obligations of prosecutors and the consequences of violating these obligations. This, in turn, has led to the election of reform-minded candidates who defeated innocence-denying incumbents by running on progressive platforms, including a commitment to revisiting wrongful conviction cases.

In this Article, I argue that these "good prosecutor" stories can be woven into a coherent and compelling meta-narrative that can help put an end to innocence denying. When the new exoneration narrative becomes predominant, prosecutors who embrace their ethical obligations and correct miscarriages of justice will have everything to gain because the voters will see them as courageous and just. Innocence deniers, by contrast, will be rendered unelectable.

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