Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science
Burke, Alafair S., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. COGNITIVE BIAS: FOUR EXAMPLES OF IMPERFECT DECISION MAKING A. Confirmation Bias B. Selective Information Processing C. Belief Perseverance D. The Avoidance of Cognitive Dissonance II. THE ETHICAL PROSECUTOR AND COGNITIVE BIAS A. Investigation and Charging Decisions B. Sticky Presumptions of Guilt C. The Disclosure of Exculpatory Evidence D. Stickier Presumptions of Guilt Postconviction III. IMPROVING PROSECUTORIAL DECISION MAKING A. Improving the Initial Theory of Guilt B. Educating Prosecutors and Future Prosecutors C. The Practice of "Switching Sides" D. Second Opinions and Committee Input E. Prosecutorial Involvement in Innocence Projects F. Repairing Brady CONCLUSION
Earl Washington Jr., a black mentally retarded farmhand, spent seventeen years in prison--nearly ten of them on death row--for the rape and murder of a white woman before DNA tests linked another man to the crimes. (1) The evidence originally implicating him was questionable. The victim provided little identifying information, indicating before her death only that a black man had attacked her. (2) Washington was convicted based largely on his own confession, even though he simultaneously provided factually inconsistent confessions to four other crimes and did not know the location of the crime scene, whether other people were present, or even the victim's race without the assistance of leading questioning from police. (3) When defense counsel sought postconviction relief based on the discovery of another man's DNA on a blanket linked to the crime, prosecutors resisted. (4) Even after Washington was pardoned because of exonerating evidence, prosecutors insisted that he remained a viable suspect. (5)
Earl Washington's case raises questions about the discretionary decisions his prosecutors made from the moment they received the case. Why did they look past apparent problems with the confession? Why did they resist the evidentiary testing that ultimately exonerated an innocent man? Why would they still not concede innocence after his exoneration? Traditionally, commentators have clothed the study of prosecutorial decision making in the rhetoric of fault, attributing normatively inappropriate outcomes to bad prosecutorial intentions and widespread prosecutorial misconduct. (6) From this perspective, Earl Washington's conviction, and his prosecutors' refusal to concede his innocence even after a gubernatorial pardon, result from prosecutorial overzealousness, (7) a culture that emphasizes winning, (8) the absence of "moral courage," (9) and the failure of prosecutors to act as neutral advocates of justice. (10)
This focus upon incentives, priorities, and values as potential taints upon the exercise of prosecutorial discretion reveals an implicit but important assumption about prosecutors: they are rational, utility-maximizing decision makers. Prosecutors choose to overcharge defendants, withhold exculpatory evidence, and turn a blind eye to claims of innocence; therefore, the traditional inference goes, they must value obtaining and maintaining convictions over "doing justice." (11) To ensure that prosecutors do not rationally opt for misconduct to maximize their conviction rates, the fault-based literature recommends reform through changes to the prosecutorial cost-benefit analysis. Common strategies include more stringent ethical rules, (12) increased disciplinary proceedings and sanctions against prosecutors, (13) and professional (14) and financial (15) rewards based on factors other than just obtaining convictions.
Consider, however, a different explanation for the failure of prosecutors always to make just decisions. Perhaps prosecutors sometimes fail to make decisions that rationally further justice, not because they fail to value justice, but because they are, in fact, irrational. They are irrational because they are human, and all human decision makers share a common set of information-processing tendencies that depart from perfect rationality. …