Model Ethical Standards Model Ethical Standards for Prosecutors Facing for Prosecutors Facing Post-Conviction Claims Post-Conviction Claims

of Innocenceof Innocence

David M. Siegel & Judith David M. Siegel & Judith GoldbergGoldberg

Why Model Ethical Standards Are NeededWhy Model Ethical Standards Are Needed

►Rights to testing by statutes or court Rights to testing by statutes or court rules will still be implemented in an rules will still be implemented in an adversarial context, with procedural adversarial context, with procedural requirements.requirements.

►Defendants will always be the initial Defendants will always be the initial proponents of new science, and will proponents of new science, and will always bear the burden of the always bear the burden of the presumed validity of their convictions.presumed validity of their convictions.

Overview of Model Ethical Overview of Model Ethical StandardsStandards

►When Faced with a Defendant’s Post-When Faced with a Defendant’s Post-Conviction Claim of Innocence Conviction Claim of Innocence Requesting the Application of New Requesting the Application of New Science, the Prosecutor Shall:Science, the Prosecutor Shall: Promptly Seek the Fullest Accounting of Promptly Seek the Fullest Accounting of

TruthTruth Effect the Fullest Disclosure PossibleEffect the Fullest Disclosure Possible Use the Most Accurate ScienceUse the Most Accurate Science

Goals of these StandardsGoals of these Standards

►Acceptability to Acceptability to AllAll Members of the C/J Members of the C/J SystemSystem

►Perception as Fair and Reasonable by Perception as Fair and Reasonable by AllAll Members of C/J System Members of C/J System andand by Lay by Lay PersonsPersons

►Recognition as Recognition as DesirableDesirable by by ProsecutorsProsecutors

Applicability of these Applicability of these StandardsStandards

►Post-ConvictionPost-Conviction ““Ordinary” ethical standards already Ordinary” ethical standards already

apply through direct appealapply through direct appeal

►Claims of Actual or Factual InnocenceClaims of Actual or Factual Innocence Actual – legally insufficient evidence of Actual – legally insufficient evidence of

guiltguilt Factual – demonstrable proof of innocenceFactual – demonstrable proof of innocence

►Seeking Use of “New” ScienceSeeking Use of “New” Science Newly available or newly admissibleNewly available or newly admissible

Counterarguments to Model Counterarguments to Model Standards - IStandards - I

► Prosecutor’s Obligation to Promptly Seek the Prosecutor’s Obligation to Promptly Seek the Fullest Accounting of TruthFullest Accounting of Truth The final, valid conviction The final, valid conviction is is the truth.the truth.

►Finality based upon factually inaccurate premise is not Finality based upon factually inaccurate premise is not genuine finality.genuine finality.

That’s not the Prosecutor’s job.That’s not the Prosecutor’s job.►The Prosecutor’s job is seeking justice rather than The Prosecutor’s job is seeking justice rather than

simply convictions.simply convictions.

The Defendant should submit these claims to the The Defendant should submit these claims to the adversarial process for a determination of truth.adversarial process for a determination of truth.

Counterarguments to Model Counterarguments to Model Standards - IIStandards - II

►Prosecutor’s Obligation to Effect Prosecutor’s Obligation to Effect Fullest Disclosure PossibleFullest Disclosure Possible This would require permanent retention of This would require permanent retention of

all evidence and files in all cases.all evidence and files in all cases.►These are These are essential essential Procedural Issues.Procedural Issues.

Who has obligation to maintain evidence and files?Who has obligation to maintain evidence and files? Where should evidence and files be maintained?Where should evidence and files be maintained? Who can have access to evidence and files?Who can have access to evidence and files? How long must evidence and files be maintained?How long must evidence and files be maintained? Liability for failure to maintain files and evidence?Liability for failure to maintain files and evidence?

Counterarguments to Model Counterarguments to Model Standards - IIIStandards - III

Prosecutor’s Obligation to Use Most Prosecutor’s Obligation to Use Most Accurate ScienceAccurate Science►Do we sacrifice legal finality on the altar of Do we sacrifice legal finality on the altar of

scientific advancement? scientific advancement? Finality based upon scientifically demonstrably Finality based upon scientifically demonstrably

factually inaccurate premise is not genuine finality.factually inaccurate premise is not genuine finality.►What is “most accurate” as science constantly What is “most accurate” as science constantly

evolves?evolves? At a minimum, most accurate science means that At a minimum, most accurate science means that

which prosecutors use in current cases.which prosecutors use in current cases. At a maximum, most accurate science means that At a maximum, most accurate science means that

which is admissible by highest court in jurisdiction.which is admissible by highest court in jurisdiction.

Model Ethical Standards Would Model Ethical Standards Would Proactively Address Procedural IssuesProactively Address Procedural Issues

► Chain of Custody –Chain of Custody – The “next defendant” or “real perpetrator” argumentThe “next defendant” or “real perpetrator” argument The “Foreign Lab” argument (i.e., one in a foreign jurisdiction, e.g., The “Foreign Lab” argument (i.e., one in a foreign jurisdiction, e.g.,

California)California) The “How do we know the defense didn’t tamper with it“ argumentThe “How do we know the defense didn’t tamper with it“ argument

► AuthenticationAuthentication The “next defendant” or “real perpetrator” argumentThe “next defendant” or “real perpetrator” argument The “If it can’t be authenticated first as it would be at trial, it will never be The “If it can’t be authenticated first as it would be at trial, it will never be

admitted, so it’s not relevant” argumentadmitted, so it’s not relevant” argument► Statutes of Limitations / Time barsStatutes of Limitations / Time bars► Cost / FundingCost / Funding

The “It will be cheaper if our lab does it” argumentThe “It will be cheaper if our lab does it” argument► Prevent StallingPrevent Stalling

The “We just need more time to ensure we know what evidence there is” The “We just need more time to ensure we know what evidence there is” argumentargument

► DisclosureDisclosure The “ongoing investigation” argumentThe “ongoing investigation” argument

Why Prosecutors Benefit from Why Prosecutors Benefit from Model Ethical StandardsModel Ethical Standards

► Quid Pro Quo Quid Pro Quo ► Full Disclosure of Expert’s Analysis as a Full Disclosure of Expert’s Analysis as a

Matter of RightMatter of Right► Resource Conservation by avoiding Resource Conservation by avoiding

protracted litigationprotracted litigation► Increased Public Confidence in Reliability of Increased Public Confidence in Reliability of

C/J System C/J System ► Increased Clarity of Prosecutor’s ObligationsIncreased Clarity of Prosecutor’s Obligations► Reduced Opportunity for Defense ArgumentsReduced Opportunity for Defense Arguments

What Model Ethical Standards What Model Ethical Standards Mean for DefendantsMean for Defendants

►Foregoing Procedural ProtectionsForegoing Procedural Protections►Foregoing the Ability to Obscure Truth Foregoing the Ability to Obscure Truth