Violated Trust: Conceptualizing Prosecutorial Misconduct

Published date01 August 2005
Date01 August 2005
Subject MatterArticles
10.1177/1043986205278722Journal of Contemporary Criminal Justice / August 2005Schoenfeld / PROSECUTORIAL MISCONDUCT
Violated Trust:
Conceptualizing Prosecutorial Misconduct
Northwestern University
Inthe pastdecade, investigationsinto wrongful convictions have uncoveredmultiple incidents of
prosecutorialmisconduct during trial. This article proposes a theoretical explanation of prosecu-
torialmisconduct with the goal of prompting further research. The theory builds from the charac-
terization of prosecutors as agents of trust and prosecutorial misconduct as a violation of the
norms of trust. Utilizing theories of occupational crime, the theory explainshow the structure of
the trust relationship creates motivationand opportunities for misconduct. Motivation to engage
inmisconduct stems fromprosecutors’ definitions of success, which are influenced by the reward
structure and the availabilityof techniques of neutralization. Opportunities for misconduct arise
because of the organizationof the prosecutorial role and weak sanctions for prosecutors’ misbe-
havior. Given the motivation and opportunity, prosecutors’decision to engage in misconduct
depends on their evaluation of existing opportunities, which is influenced by their workplace
subculture and their values and beliefs.
Keywords: prosecution, criminal procedure, white-collar crime, theory
In the past 30 years, the prosecutor has become the most powerful position
in the criminal justice system (Saltzburg & Capra, 2000). Unfortunately,
this power has contributed to convictions of innocent defendants. Although
the full extent of prosecutorial misconduct is unknown (Meares, 1995),
recent studies suggest cause for concern. Prosecutorial misconduct was a fac-
tor in 45% of recent cases overturned because of DNA evidence (Scheck,
Iwould like to thank John Hagan,Gabrielle Ferrales, and the anonymous reviewers for their feed-
back on earlier drafts of the article. Additional thanks are due to Larry Marshall and Rob Warden
for introducing me to this topic. Please direct all correspondence concerning this article to
Heather Schoenfeld, Northwestern University, 1810 Chicago Avenue, Evanston, IL 60208;
Journal of Contemporary Criminal Justice, Vol. 21 No. 3, August 2005 250-271
DOI: 10.1177/1043986205278722
© 2005 Sage Publications
Neufeld, & Dwyer, 2000, p. 361) and 24% of recently overturned death pen-
alty cases (Warden, 2001). The Center for Public Integrity found that since
1970, appellate courts have reviewed 11,452 criminal cases where the defen-
dant claimed the prosecutor acted improperly. In 20% of the cases, the court
dismissed, reversed, or reduced the original sentence partly because of the
misconduct (Weinberg, Gordon, & Williams, 2005).
The aforementioned reports and the recent media coverage of wrongdoing
by prosecutors point to the need for systematic analyses of prosecutorial mis-
conduct and its causes.1New empirical research on misconduct should be
grounded in a comprehensive theory.However, existing theories of prosecu-
torial misconduct do not take into account the structure of the prosecutorial
profession while specifying conditions under which prosecutorial miscon-
duct is more likely.This article proposes an alternative more comprehensive
theory—with the goal of generating testable hypotheses. The theory builds
from the characterization of prosecutors as agents of trust and prosecutorial
misconduct as violations of the norms of trust. Borrowing from theories of
occupational crime to explain how the structure of the trust relationship cre-
ates motivationand opportunities for misconduct, the theory can explain why
some prosecutors, despite their mandate to seek justice, use improper and
unethical tactics.
Prosecutorial misconduct can occur during any part of the criminal justice
process, including presentation to the grand jury,charging decisions, discov-
ery,plea negotiations, trial, and postconviction appeals. However,the follow-
ing argument focuses on prosecutorial misconduct around criminal trials—
either during pretrial discovery, trial, or posttrial appeals—because this type
of misconduct is most implicated in wrongful conviction cases.2Because
most convictions are obtained through a guilty plea, the scope of the argu-
ment is necessarily limited. However, because approximately one third of
murder defendants’ cases go to trial (Rainville & Reaves, 2003), including
many high-profile cases, the potential incidence of prosecutorial misconduct
presents a significant obstacle to the legitimacy and reliability of the current
criminal justice system.
Knowledge of prosecutorial conduct is derived mainly from journalistic
accounts and legal scholarship, none of which adequately explains why some
prosecutors engage in misconduct and others do not. Alternatively,social sci-
entists have developedtheories of legal decision making; however, these the-
ories do not specifically address misbehavior.

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