Document Type



Efforts to rectify wrongful convictions in the United States arguably represent a new civil rights movement for the twentieth-first century. Since 1989, post-conviction DNA testing has exonerated over two hundred inmates, their innocence proven beyond a shadow of a doubt through science, and at least three hundred other innocent prisoners have gained their freedom in cases lacking the magic bullet of DNA. 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.

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 by 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 will be wrongfully convicted; armed with exculpatory and other evidence, the innocent are better positioned to reject plea offers and mount solid defenses at trial. In short, more disclosure in more cases in a more timely fashion is a good idea.

Yet any discussion about prosecutorial disclosure is incomplete without paying some attention to an equally vital moment in the pretrial process: the initial decision to charge a suspect with a crime whatsoever. The mere decision to charge tends to set in motion a sequence of events that inexorably lead to either a plea offer or a trial - even where the case is weak and where the prosecution has complied fully with its disclosure duties. This Essay grapples with the topic of prosecutorial charging decisions in light of the "Innocence Revolution." Part I of the Essay explores the rules and practices surrounding prosecutorial charging decisions, pointing out some of the flaws in this regime that may accidentally lead to charging innocent suspects with crimes. Next, Part II proposes a series of modest reforms to the charging process designed to reduce the possibility that the innocent will face criminal charges at all.

Date of Authorship for this Version



post-conviction DNA testing, exoneration, Criminal Law

Original Citation

Originally published in Cardozo Law Review, Vol. 31, No. 6, pp. 2187, 2010.