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50 Santa Clara L. Rev. 303 (2010)
When Self-Policing Does Not Work: A Proposal for Policing Prosecutors in Their Obligation to Provide Exculpatory Evidence to the Defense

handle is hein.journals/saclr50 and id is 313 raw text is: WHEN SELF-POLICING DOES NOT WORK: A PROPOSAL FOR POLICING PROSECUTORS IN THEIR OBLIGATION TO PROVIDE EXCULPATORY EVIDENCE TO THE DEFENSE Sara Gurwitch* It is incumbent upon all those who study the criminal justice system to evaluate the causes of wrongful convictions, and to consider ways to address them.' While certain causes-including faulty eyewitness identifications and unreliable confessions-have, appropriately, received significant attention2 and useful reforms have been proposed,3 the role of prosecutorial misconduct in wrongful conviction cases has failed to generate reform efforts within the criminal justice community. Under Brady v. Maryland, prosecutors have a constitutional obligation to provide the defense with exculpatory material.4 If a prosecutor fails in this obligation, *Supervising Attorney, Office of the Appellate Defender, New York; Adjunct Clinical Professor, William Mitchell College of Law; J.D., University of Minnesota Law School, 1995; B.A., Barnard College, Columbia University, 1987. I would like to thank Alexis Agathocleous, Horacio Devoto, Eric Janus, Claire Kelly, Namita Luthra, Michael Pinard, and David Weissbrodt for their very useful insights. 1. The fact of wrongful convictions is well documented. See, e.g., JIM DWYER, PETER NEUFELD & BARRY SCHECK, ACTUAL INNOCENCE (2000). 2. See Jennifer L. Devenport, Steven D. Penrod & Brian L. Cutler, Eyewitness Identification Evidence, 3 PSYCHOL. PUB. POLY & L. 338 (1997); Arye Rattner, Convicted but Innocent: Wrongful Conviction and the Criminal Justice System, 12 LAW & HUM. BEHAv. 283, 289-92 (1988). 3. See, e.g., Richard A. Rosen, Reflections on Innocence, 2006 Wis. L. REV. 237, 261-66 (discussing videotaping interrogations as a method to address false confessions); Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. REV. 615, 642 (discussing lineup reform procedures); Richard A. Wise et al., A Tripartite Solution to Eyewitness Error, 97 J. CRIM. L. & CRIMINOLOGY 807, 854 (2007) (discussing double-blind identification and sequential lineup procedures). 4. See generally Brady v. Maryland, 373 U.S. 83 (1963). 303

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