The vast majority of prosecutors in the United States and Canada are decent, honorable lawyers. But, occasionally there are notable instances where the lawyers for the prosecution don’t live up to our ideals. In recent years there was a failure to disclose exculpatory evidence in the case of former Alaska Senator Ted Stevens, several death penalty convictions reversed for similar conduct, and a plethora of claims that arguments in closing argument were improper. A lot of these claims are rejected on harmless error grounds.  But, should they be?

Mary Bowman (Seattle University School of Law) has posted Mitigating Foul Blows (Georgia Law Review, 2015, Forthcoming) on SSRN.

Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, 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 and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.