By Melanie D. Wilson[*]
The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions. Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case—whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime. This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more of these significant issues and offers an ethical solution for resolving such disputes that will not undermine a criminal defendant’s chances of justice.
This Essay develops in three parts. Part I provides a concrete example of the ethical dilemma that can result when a prosecutor and her boss disagree about a defendant’s guilt. Part II discusses the ethics rules that guide prosecutors and the gap in the rules for prosecutor-boss disputes. Part III offers a proposal grounded in candor and transparency to resolve these disputes without compromising the defendant’s substantive and procedural rights.