Neutralizing Cognitive Bias: An Invitation to Prosecutors
With the number of criminal defendants exonerated by DNA evidence nearing the two hundred mark, and with multiple states flirting with death penalty moratoriums in part to avoid killing the innocent, we appear to stand at a milestone in our treatment of claims by criminal defendants that they have been wrongly convicted. Some commentators have declared the dawn of a new “movement” to support claims of innocence. Others have gone so far as to call the movement a “revolution.” Regardless of what we call this moment, Richard Rosen is undoubtedly correct when he observes that we potentially “are at the beginning of an exciting new period of American criminal justice, one directly related to the acknowledgment that we convict innocent people.”
One notable aspect of this burgeoning movement is its attempt to bring into the fold the prosecutors who are frequently depicted as part of the wrongful conviction problem, rather than its solution. Traditionally, prosecutorial decision making has been studied through a lens of fault, blame, and intentional wrongdoing. Consistent with this lens, those who have studied the downsides of broad prosecutorial discretion have blamed bad prosecutorial decisions on overzealousness, flawed cultural and individual values, and a lack of moral courage. The collective impact of this fault-based narrative is the depiction of prosecutors as dogmatic adversaries of innocence, wholly abandoning their ethical obligations as neutral advocates of justice. In contrast, much of the narrative recently emerging from the growing innocence movement appears focused on persuading prosecutors of their importance in this new movement, not as adversaries, but as equal partners in the prevention of wrongful convictions.
