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Unpublished Paper
Mitigating Foul Blows: Rethinking Procedural Barriers to Prosecutorial Misconduct Claims
ExpressO (2014)
  • Mary N. Bowman

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. While courts are often quick to condemn prosecutorial misconduct, however, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel’s failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts’ attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error as applied in prosecutorial misconduct cases, as well as removal of the penalties that come from defense counsel’s failure to object at trial. These solutions will help clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, allow defense counsel to recognize that misconduct and raise timely objections, and provide reversal of convictions when misconduct may well have affected the outcome of the case, while still allowing courts to affirm when the misconduct was trivial.

  • Prosecutorial misconduct,
  • cognitive bias,
  • harmless error,
  • plain error
Publication Date
Citation Information
Mary N. Bowman. "Mitigating Foul Blows: Rethinking Procedural Barriers to Prosecutorial Misconduct Claims" ExpressO (2014)
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