By Melanie D. Wilson[*]
The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions.[1] Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence,[2] 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[3] about one or more of these significant issues[4] 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.
