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31 Cardozo L. Rev. 2187 (2009-2010)
Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution

handle is hein.journals/cdozo31 and id is 2203 raw text is: EMOTIONALLY CHARGED: THE PROSECUTORIAL CHARGING DECISION AND THE INNOCENCE REVOLUTION Daniel S. Medwed* INTRODUCTION Efforts to rectify wrongful convictions in the United States arguably represent a new civil rights movement for the twenty-first century.' Since 1989, post-conviction DNA testing has exonerated over two hundred and fifty inmates, and at least three hundred other innocent prisoners have gained their freedom in cases lacking the magic bullet of DNA.2 Studies of these cases reveal that specific factors tend to cause wrongful convictions in the first place. Misbehavior by prosecutors- especially involving the suppression of exculpatory evidence-has emerged as one of those factors.3 This Symposium directly (and commendably) tackles the problem of under-disclosure of evidence by prosecutors. Encouraging prosecutors to adhere more closely to existing disclosure rules advances the ends of fairness by boosting the capacity of the defense to prepare for trial. Increased disclosure can also bolster the accuracy of criminal adjudications by minimizing the risk that innocent criminal defendants * Professor of Law, S.J. Quinney College of Law, University of Utah. J.D. Harvard Law School, 1995; B.A. Yale College, 1991. In sum and substance, this Article will appear as a chapter in my forthcoming book on the topic of prosecutors and wrongful convictions to be published by New York University Press. I would like to thank Ellen Yaroshefsky for inviting me to participate in this Symposium and Chayce Clark for his helpful research assistance. I See, e.g., Press Release, Innocence Project, As 100th Innocent Prisoner Is Freed by DNA Tests, Innocence Network Convenes to Map the Future of New Civil Rights Movement in Criminal Justice, (Jan. 17, 2002), available at http://www.deathpenaltyinfo.org/ article.php?did=280&scid= 1. 2 For a current listing of DNA exonerations in the United States, see The Innocence Project, http://www.innocenceproject.org (last visited June 25, 2010). See also Samuel R. Gross et al., Exonerations in the United States, 1989-2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 524, 533-35 (2005) (citing 196 non-DNA exonerations during this period, not including roughly 135 innocent defendants framed and later freed as part of the Rampart scandal in Los Angeles and in Tulia, Texas). 3 See, e.g., Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 D.C. L. REv. 275, 276, 278, 285 (2004). 2187

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