WHEREAS the National Association of Criminal Defense Lawyers (NACDL) continues to be committed to safeguarding the integrity of our justice system by advancing systemic reform holding prosecutors accountable for misconduct;
WHEREAS the NACDL has convened a Task Force on Prosecutorial Accountability to research, evaluate, and make recommendations that will deter and reduce the damage caused by prosecutorial misconduct;
THEREFORE, BE IT RESOLVED that NACDL recognizes the urgent need for systemic reform to address prosecutorial misconduct;
BE IT FURTHER RESOLVED that NACDL recommends action in eleven areas:
- Improving Bar Disciplinary Processes:
- Defense lawyers and judges must refer prosecutors to bar disciplinary panels when they have found a prosecutor violated court orders or discovery rules or engaged in other misconduct. Once prosecutors have been referred to bar disciplinary panels, a full investigation must be conducted to ensure those who violate the rules are held accountable.
- State bars should adopt the full text of the American Bar Association Model Rules of Professional Responsibility Rule 3.8, which recognizes the Special Responsibilities of a Prosecutor that come with the authority and power of that position.
- Promoting the Use of Contempt Power:
- Trial judges should make clear what is expected of prosecutors. Judges should clearly order prosecutors at the outset of the case to disclose all relevant information and materials to the defense, to not make arguments unsupported by evidence and not make arguments that appeal to bias and prejudice, and to not discriminate based on race, gender, sexual orientation, or religious or political beliefs during jury selection. To avoid misunderstandings, judges should provide checklists, consistent with constitutional law and the state’s discovery and bar rules, of potentially relevant information and materials judges expect the prosecutor to produce and of inappropriate arguments.
- If a prosecutor violates a clear, unequivocal order, the judge must hold them in contempt of court and, when appropriate, dismiss the defendant’s criminal charges with prejudice.
- Creating Criminal Liability for Willful or Knowing Cheating: Prosecutors have taken an oath to uphold the law and have a fundamental duty to pursue justice. Prosecutors who knowingly and willfully break their vow and cheat on purpose must be prosecuted and punished.
- Mandating Effective Training: Every federal and state prosecution office must train all prosecutors using a mandatory curriculum that includes training on the disclosure of information to the defense, the appropriate treatment of witnesses, the appropriate selection of jurors, appropriate arguments, and the absolute necessity for candor with the court and truth in justice.
- Providing Defense Lawyers with Necessary Tools:
- Public defense must be adequately funded to ensure that wrongdoing by prosecutors does not remain undetected. Defense lawyers must understand how to combat prosecutorial misconduct effectively. The NACDL will make available to defense lawyers a toolkit with model letters, motions, and briefs designed to prevent, discover, and correct prosecutorial misconduct.
- Credible, good-faith cases of prosecutorial misconduct must be reported and vigorously litigated. The NACDL urges lawyers to follow Rule 8.3 of the Model Rules of Professional Conduct, which requires lawyers to report a lawyer who has breached the rules in such a way that it “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”
- Eliminating Absolute Immunity from Civil Lawsuits: The Supreme Court should reconsider its position that prosecutors cannot be sued by defendants in civil court, even where the defendant was wrongfully convicted as a result of prosecutors’ intentional misconduct. Congress should pass legislation that prosecutors can be sued in federal court, and state legislatures should pass legislation that state prosecutors can be sued in state court.
- Establishing Additional Conviction Integrity Units: Prosecution Conviction Integrity Units and Conviction Review Units play a key role in exoneration work and increase public and justice system stakeholders' confidence in our justice system. More prosecution offices should have units designed to review cases with a good faith question of, at a minimum, actual innocence or prosecutorial misconduct. Office leadership should support these units with adequate funding, staffing, and the ability to operate independently. Existing units should be defended from efforts to eliminate, prevent, or circumstance their work.
- Enacting the Inspector General Access Act: Congress should pass and the President should sign the Inspector General Access Act to ensure the Inspector General can investigate federal prosecutors, who should not be treated differently than every other federal employee.
- Making Post-Conviction Records Available to Journalists: Investigative journalists play a key role in holding prosecutors accountable and must have access to post-conviction records to continue their work.
- Establishing a Database Tracking Misconduct: A non-governmental organization dedicated to maintaining a database of prosecutors associated with wrongful convictions and wrongful conduct would assist in collecting data necessary to understand the root causes, magnitude, and jurisdictional frequency of prosecutorial misconduct. This data would provide notice to the bench, the bar, and the public.
- Eliminating Procedural Barriers Preventing Exonerations in Cases of Prosecutorial Misconduct: Congress and state legislatures should pass legislation assuring that challenges to convictions caused by prosecutorial misconduct are heard on the merits and not swept under the rug on procedural technicalities.
