William and Mary Law Review

March, 2006

**Articles**

**\*1587** IMPROVING PROSECUTORIAL DECISION MAKING: SOME LESSONS OF
COGNITIVE

SCIENCE

Alafair S. Burke [[\[FNa1\]](#Document1zzFN_Fa1)]{.underline}

Copyright © 2006 William and Mary Law Review; Alafair S. Burke

**\*1588** Introduction

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.
[[\[FN1\]](#Document1zzFN_F1)]{.underline} 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. [[\[FN2\]](#Document1zzFN_F2)]{.underline} 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.
[[\[FN3\]](#Document1zzFN_F3)]{.underline} When defense counsel sought
postconviction relief based on the discovery of another man\'s DNA on a
blanket linked to the crime, prosecutors resisted.
[[\[FN4\]](#Document1zzFN_F4)]{.underline} Even after Washington was
pardoned because of exonerating evidence, prosecutors insisted that he
remained a viable suspect. [[\[FN5\]](#Document1zzFN_F5)]{.underline}

**\*1589** 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.
[[\[FN6\]](#Document1zzFN_F6)]{.underline} From this perspective, Earl
Washington\'s conviction, and his prosecutors\' refusal to concede his
innocence even after a gubernatorial pardon, result from prosecutorial
overzealousness, [[\[FN7\]](#Document1zzFN_F7)]{.underline} a culture
that emphasizes winning, [[\[FN8\]](#Document1zzFN_F8)]{.underline} the
absence of \"moral courage,\" [[\[FN9\]](#Document1zzFN_F9)]{.underline}
and the failure of prosecutors to act as neutral advocates of justice.
[[\[FN10\]](#Document1zzFN_F10)]{.underline}

**\*1590** 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.\" [[\[FN11\]](#Document1zzFN_F11)]{.underline} 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,
[[\[FN12\]](#Document1zzFN_F12)]{.underline} increased disciplinary
proceedings and sanctions against prosecutors,
[[\[FN13\]](#Document1zzFN_F13)]{.underline} and professional
[[\[FN14\]](#Document1zzFN_F14)]{.underline} and financial
[[\[FN15\]](#Document1zzFN_F15)]{.underline} 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. A **\*1591** compelling body of cognitive research
demonstrates that people systematically hold a set of cognitive biases,
rendering them neither perfectly rational information processors, nor
wholly random or irrational decision makers.
[[\[FN16\]](#Document1zzFN_F16)]{.underline} Drawing on the cognitive
literature, the growing literature of behavioral law and economics
explores the limitations of cost-benefit rationality, challenging the
assumption of traditional economists that people are perfect wealth
maximizers. [[\[FN17\]](#Document1zzFN_F17)]{.underline} From both the
cognitive and behavioral economics literature emerges a theory of
bounded rationality that seeks to explain how cognitive biases and
limitations in our cognitive abilities distort perfect information
processing in nonrandom, predictable ways.
[[\[FN18\]](#Document1zzFN_F18)]{.underline}

**\*1592** Others have suggested how cognitive bias and bounded
rationality can affect juries,
[[\[FN19\]](#Document1zzFN_F19)]{.underline} judges,
[[\[FN20\]](#Document1zzFN_F20)]{.underline} the regulation of risk,
[[\[FN21\]](#Document1zzFN_F21)]{.underline} federal rulemaking,
[[\[FN22\]](#Document1zzFN_F22)]{.underline} corporate disclosures,
[[\[FN23\]](#Document1zzFN_F23)]{.underline} contract law,
[[\[FN24\]](#Document1zzFN_F24)]{.underline} consumer choice,
[[\[FN25\]](#Document1zzFN_F25)]{.underline} employment discrimination,
[[\[FN26\]](#Document1zzFN_F26)]{.underline} and group deliberations.
[[\[FN27\]](#Document1zzFN_F27)]{.underline} This Article seeks to
explain how cognitive bias can affect the exercise of prosecutorial
discretion. Viewing cases like Earl Washington\'s through a lens of
human cognition, rather than fault, colors not only the description of
the problem, but also the recommended solutions. When the underlying
problem is human irrationality, rather than the malicious intentions of
a single prosecutor or the indifference of a prosecutorial culture, the
result is a far more complicated story about the criminal justice
system. If prosecutors fail to achieve justice not because they are bad,
but because they are human, what hope is there for change?

**\*1593** This Article explores the potential that even \"virtuous,\"
[[\[FN28\]](#Document1zzFN_F28)]{.underline} \"conscientious,\"
[[\[FN29\]](#Document1zzFN_F29)]{.underline} and \"prudent\"
[[\[FN30\]](#Document1zzFN_F30)]{.underline} prosecutors fall prey to
cognitive failures. Part I summarizes four related aspects of cognitive
bias that can affect theory formation and maintenance. Part II explores
how these cognitive phenomena might adversely affect the exercise of
prosecutorial discretion. Finally, Part III proposes a series of reforms
that might improve the quality of prosecutorial decision making, despite
the limitations of human cognition.

I. Cognitive Bias: Four Examples of Imperfect Decision Making

Decades of empirical research demonstrate that people\'s beliefs are
both imperfect and resistant to change. Once people form theories, they
fail to adjust the strength of their beliefs when confronted with
evidence that challenges the accuracy of those theories.
[[\[FN31\]](#Document1zzFN_F31)]{.underline} Indeed, theory maintenance
will often hold even when people learn that the evidence that originally
justified the theory is inaccurate.
[[\[FN32\]](#Document1zzFN_F32)]{.underline} At the same time that
people fail to consider information that disconfirms a theory, they tend
both to seek out and to overvalue information that confirms it.
[[\[FN33\]](#Document1zzFN_F33)]{.underline}

This Article explores four related but separate aspects of cognitive
bias that can contribute to imperfect theory formation and maintenance:
confirmation bias, selective information processing, belief
perseverance, and the avoidance of cognitive dissonance. Confirmation
bias is the tendency to seek to confirm, rather than **\*1594**
disconfirm, any hypothesis under study.
[[\[FN34\]](#Document1zzFN_F34)]{.underline} Selective information
processing causes people to overvalue information that is consistent
with their preexisting theories and to undervalue information that
challenges those theories. [[\[FN35\]](#Document1zzFN_F35)]{.underline}
Belief perseverance refers to the human tendency to continue to adhere
to a theory, even after the evidence underlying the theory is disproved.
[[\[FN36\]](#Document1zzFN_F36)]{.underline} Finally, the desire to
avoid cognitive dissonance can cause people to adjust their beliefs to
maintain existing self-perceptions.
[[\[FN37\]](#Document1zzFN_F37)]{.underline} This Part summarizes the
empirical literature regarding each of these cognitive phenomena.

A. Confirmation Bias

When testing a hypothesis\'s validity, people tend to favor information
that confirms their theory over disconfirming information.
[[\[FN38\]](#Document1zzFN_F38)]{.underline} Good evidence suggests that
this information-seeking bias results because people tend to recognize
the relevance of confirming evidence more than disconfirming evidence.
[[\[FN39\]](#Document1zzFN_F39)]{.underline} This is true even when an
effort to disconfirm is an essential step towards confirmation of the
hypothesis under test.

For example, in a classic study of confirmation bias in hypothesis
testing, Peter Wason presented subjects with four cards and told them
that each card contained a letter on one side and a number on the other.
[[\[FN40\]](#Document1zzFN_F40)]{.underline} The revealed sides of the
four cards displayed one vowel, one consonant, one even number, and one
odd number. [[\[FN41\]](#Document1zzFN_F41)]{.underline} Subjects were
then asked which of the four cards needed to be **\*1595** turned over
to test the following rule: If a card has a vowel on one side, then it
has an even number on the other side.
[[\[FN42\]](#Document1zzFN_F42)]{.underline}

Proper scientific method requires that researchers seek to disprove
their working hypotheses. [[\[FN43\]](#Document1zzFN_F43)]{.underline}
Accordingly, the rational test of Wason\'s \"if vowel, then even
number\" card test is to turn over the vowel and odd number cards. The
vowel card provides a relevant test because discovery of an odd number
on its backside would disprove the tested rule. The odd number card
provides an equally relevant test because the discovery of a vowel on
the backside of the odd number card would disconfirm the proposed \"if
vowel, then even number\" rule in the same way as any odd number on the
other side of the vowel card.

However, to test the rule that all vowel cards had even numbers on the
other side, subjects overwhelmingly selected from their four choices
either just the vowel card, or the vowel and the even number cards.
[[\[FN44\]](#Document1zzFN_F44)]{.underline} They failed to select the
odd number card that was necessary to test the rule properly.
[[\[FN45\]](#Document1zzFN_F45)]{.underline} Moreover, subjects who
chose the even number card erred still further because that card\'s
backside offered no probative value to the rule at hand.
[[\[FN46\]](#Document1zzFN_F46)]{.underline} The subjects\' choice of
cards demonstrated that the subjects failed to recognize the importance
of disconfirming evidence and instead sought information that would tend
to confirm the working rule.
[[\[FN47\]](#Document1zzFN_F47)]{.underline}

In another classic study, Mark Snyder and William Swann replicated
confirmation bias in the context of social inference.
[[\[FN48\]](#Document1zzFN_F48)]{.underline} Subjects were asked to
select questions from a list for the purpose of interviewing a target
person. [[\[FN49\]](#Document1zzFN_F49)]{.underline} Half of the
subjects were instructed to choose questions that would test whether the
target person was an extrovert, and half were told to test whether the
**\*1596** target person was an introvert.
[[\[FN50\]](#Document1zzFN_F50)]{.underline} The results demonstrated a
strong confirmation bias. [[\[FN51\]](#Document1zzFN_F51)]{.underline}
Subjects selected questions that could only prove, and never disprove,
their working hypothesis. [[\[FN52\]](#Document1zzFN_F52)]{.underline}
For example, subjects testing for extroversion chose questions like
\"What would you do if you wanted to liven things up at a party?,\"
while subjects testing for introversion chose questions like \"In what
situations do you wish you could be more outgoing?\"
[[\[FN53\]](#Document1zzFN_F53)]{.underline}

The social science literature suggests that people demonstrate
confirmation bias not only in seeking new information, but also in the
recollection of stored information. In one study, subjects were given
the same list of traits about a woman named Jane.
[[\[FN54\]](#Document1zzFN_F54)]{.underline} Some of the listed traits
were characteristic of extroversion, some of introversion, and others
neutral. [[\[FN55\]](#Document1zzFN_F55)]{.underline} Two days later,
subjects were asked to determine Jane\'s suitability for a job either as
a real estate agent or as a librarian.
[[\[FN56\]](#Document1zzFN_F56)]{.underline} Even though all subjects
were exposed to the same information about Jane, those subjects testing
Jane\'s suitability for real estate work tended to recall more
extroverted than introverted facts about her, whereas the reverse was
true for subjects testing her suitability as a librarian.
[[\[FN57\]](#Document1zzFN_F57)]{.underline} The researchers concluded
that subjects were searching their memories in a biased manner,
preferring information that tended to confirm the hypothesis presented.
[[\[FN58\]](#Document1zzFN_F58)]{.underline}

B. Selective Information Processing

A good deal of empirical research demonstrates that people are incapable
of evaluating the strength of evidence independent of their prior
beliefs. People not only demonstrate search and recall preferences for
information that tends to confirm their preexisting **\*1597** theories,
they also tend to devalue disconfirming evidence, even when presented
with it. As a result of selective information processing, people weigh
evidence that supports their prior beliefs more heavily than evidence
that contradicts their beliefs.

Charles Lord, Lee Ross, and Mark Lepper conducted what is perhaps the
most well-known study demonstrating this bias against disconfirmation.
[[\[FN59\]](#Document1zzFN_F59)]{.underline} Based on prior questioning,
the researchers knew that half of their subjects were proponents of the
death penalty who believed that the death penalty deterred murder, while
the other half were opponents who did not believe that the death penalty
deterred. [[\[FN60\]](#Document1zzFN_F60)]{.underline} Subjects were
asked to evaluate two studies, one that supported a deterrent efficacy
of the death penalty, and one that suggested the death penalty\'s
inefficacy as a deterrent. [[\[FN61\]](#Document1zzFN_F61)]{.underline}
The researchers found that proponents of the death penalty judged the
prodeterrence study as more convincing than the nondeterrence study,
whereas opponents of the death penalty reached the opposite conclusion.
[[\[FN62\]](#Document1zzFN_F62)]{.underline} Even though the studies
described the same experimental procedures but with differing results,
subjects articulated detailed justifications to support their conclusion
that the study supporting their preexisting view was superior.
[[\[FN63\]](#Document1zzFN_F63)]{.underline} Moreover, as a result of
the biased evaluation of the two studies, subjects became more polarized
in their beliefs. In other words, even though all subjects read two
contradictory studies on the death penalty, proponents of the death
penalty reported that they were more in favor of capital punishment
after reading the studies, while opponents reported that they were less
in favor. [[\[FN64\]](#Document1zzFN_F64)]{.underline}

Other researchers have replicated the phenomenon of selective
information processing in a variety of contexts.
[[\[FN65\]](#Document1zzFN_F65)]{.underline} Social scientists
**\*1598** have suggested that the mechanism for selective information
processing is attributable at least in part to motivational factors.
[[\[FN66\]](#Document1zzFN_F66)]{.underline} As an initial matter,
people choose to expose themselves to information that is consonant with
their beliefs rather than dissonant.
[[\[FN67\]](#Document1zzFN_F67)]{.underline} Moreover, when exposed to
dissonant information, they are motivated to defend their beliefs,
giving more attention and heightened scrutiny to information that
challenges those beliefs. [[\[FN68\]](#Document1zzFN_F68)]{.underline}
They will search internally for material that refutes the disconfirming
evidence, and, once that material is retrieved from memory, a bias will
exist to judge the disconfirming evidence as weak.
[[\[FN69\]](#Document1zzFN_F69)]{.underline} In contrast, when presented
with information that supports **\*1599** prior beliefs, people allocate
fewer resources to scrutinizing the information and are more inclined to
accept the information at face value.
[[\[FN70\]](#Document1zzFN_F70)]{.underline}

At a general level, selective information processing may be normatively
rational. [[\[FN71\]](#Document1zzFN_F71)]{.underline} When new
information is compatible with what we already know, it is probably
accurate. Careful scrutiny and a search for contradictory material would
expend cognitive resources unnecessarily.
[[\[FN72\]](#Document1zzFN_F72)]{.underline} On the other hand,
information that is incompatible with existing information may be
fallacious, and cognitive work to reveal the fallacy is well spent.
[[\[FN73\]](#Document1zzFN_F73)]{.underline} Of course, disconfirmation
bias leads to effective decision making only when the prior beliefs that
bias the assimilation of new information are themselves supported by
accurate information. [[\[FN74\]](#Document1zzFN_F74)]{.underline} In
criminal cases, prosecutors enjoy no such guarantee, potentially basing
their theories of guilt on retracted confessions, flawed eyewitness
testimony, and false testimony from jailhouse informants.
[[\[FN75\]](#Document1zzFN_F75)]{.underline}

C. Belief Perseverance

Although selective information processing can prevent rational,
incremental adjustments in response to new information, the phenomenon
of belief perseverance describes the tendency to adhere to theories even
when new information wholly discredits the theory\'s evidentiary basis.
With belief perseverance, human cognition departs from perfectly
rational decision making not through biased assimilation of ambiguous
new information, but by failing to adjust beliefs in response to proof
that prior information was demonstrably false.

**\*1600** In a well-known experiment by Lee Ross, Mark Lepper, and
Michael Hubbard, subjects were asked to discern between fake and actual
suicide notes. [[\[FN76\]](#Document1zzFN_F76)]{.underline} By
manipulating false feedback given to subjects as they performed the
dummy task, the experimenters led subjects to believe that they had
average performance, above average performance (success condition), or
below average performance (failure condition).
[[\[FN77\]](#Document1zzFN_F77)]{.underline} Following their completion
of the task, subjects were fully debriefed and learned that the feedback
had been false, predetermined, and random.
[[\[FN78\]](#Document1zzFN_F78)]{.underline} Subjects were even shown
the experimenters\' instruction sheet, which preassigned subjects to
each of the three performance conditions and stipulated the
corresponding feedback to be delivered.
[[\[FN79\]](#Document1zzFN_F79)]{.underline}

After subjects were debriefed, they were asked to assess their actual
performance on the task, to estimate the average performance, and to
predict their probable performance if they were to repeat the task.
[[\[FN80\]](#Document1zzFN_F80)]{.underline} The researchers found
considerable belief perseverance among subjects, despite the debriefing.
Subjects assigned the \"success condition\" rated both their actual and
future task performance more favorably than other subjects, while
subjects assigned the \"failure condition\" showed the opposite pattern,
continuing to rate their performance unfavorably.
[[\[FN81\]](#Document1zzFN_F81)]{.underline}

Moreover, the study found that belief perseverance was not limited to
self-evaluation, but extended to perceptions of others. Observer
subjects who watched both the feedback sessions and the subsequent
debriefings from behind a one-way glass also continued to demonstrate
belief perseverance after the debriefings.
[[\[FN82\]](#Document1zzFN_F82)]{.underline} In other words, observers
tended to maintain their beliefs about the observed subject\'s ability
to distinguish between fake and actual suicide notes, even after
learning that the feedback was false.
[[\[FN83\]](#Document1zzFN_F83)]{.underline}

**\*1601** Similarly, in another study, Anderson, Lepper, and Ross
presented subjects with purportedly authentic histories of firefighters
and asked the subjects to write an explanation of the relationship
between risk preference and firefighting abilities observed in the case
histories. [[\[FN84\]](#Document1zzFN_F84)]{.underline} By manipulating
the case histories, the experimenters led subjects to perceive either a
positive or negative correlation between the two traits.
[[\[FN85\]](#Document1zzFN_F85)]{.underline} The researchers reported
that, even after subjects were debriefed concerning the fictitious
nature of the case histories, they continued to cling to the theories
they formed from those histories.
[[\[FN86\]](#Document1zzFN_F86)]{.underline} In other words, the
subjects adhered to their conclusions, even after the evidence
underlying the conclusions was wholly discredited. As the researchers
concluded, \"\[i\]nitial beliefs may persevere in the face of a
subsequent invalidation of the evidence on which they are based, even
when this initial evidence is itself \... weak.\"
[[\[FN87\]](#Document1zzFN_F87)]{.underline}

D. The Avoidance of Cognitive Dissonance

Another phenomenon that can affect prosecutorial cognition is the desire
to find consistency between one\'s behavior and beliefs. The social
science evidence suggests that inconsistency between one\'s external
behavior and internal beliefs creates an uncomfortable cognitive
dissonance. To mitigate the dissonance, people will adjust their beliefs
in a direction consistent with their behavior.
[[\[FN88\]](#Document1zzFN_F88)]{.underline}

For example, in a classic study, Leon Festinger and James Carlsmith paid
subjects either one or twenty dollars to misinform another person, a
confederate who was supposedly waiting to serve as a subject, that a
long, boring task was actually interesting.
[[\[FN89\]](#Document1zzFN_F89)]{.underline} **\*1602** Even though
subjects were all required to complete the same mundane task, the
subjects who were paid only a dollar to deceive the confederate reported
that they found the task more interesting than either the subjects who
received the more substantial payment or the control subjects, who had
performed the task but had not been asked to deceive the confederate.
[[\[FN90\]](#Document1zzFN_F90)]{.underline}

The researchers concluded that cognitive dissonance was created by the
conflict between the subjects\' beliefs that the task was boring and the
subjects\' behavior in telling someone that the task was interesting.
[[\[FN91\]](#Document1zzFN_F91)]{.underline} To reconcile this
dissonance, subjects who were paid only a dollar to mislead adjusted
their own beliefs about the task.
[[\[FN92\]](#Document1zzFN_F92)]{.underline} In contrast, those who were
paid twenty dollars had an additional consonant cognition-\"I was paid
twenty dollars to lie\"-and therefore had no need to adjust their
beliefs to be consistent with their conduct.
[[\[FN93\]](#Document1zzFN_F93)]{.underline} Since Fester and
Carlsmith\'s original study, other researchers have reported robust
effects of cognitive dissonance in other settings.
[[\[FN94\]](#Document1zzFN_F94)]{.underline}

II\. The Ethical Prosecutor and Cognitive Bias

No reason exists to believe that lawyers are immune from the documented
bounds of rationality, and yet the literature on prosecutorial decision
making continues to describe prosecutors as rational, wealth-maximizing
actors who would make better, more just decisions if they only had
better, more just values. [[\[FN95\]](#Document1zzFN_F95)]{.underline}
Through the lens of the cognitive phenomena summarized in Part I, a more
**\*1603** complicated story is evident. That prosecutors should be
motivated by justice, not conviction rates, should go without saying.
The harder question to answer is whether good motives, both individually
and institutionally, are enough. The implications of the cognitive
literature suggest not.

The broad powers of the prosecutor are familiar. If brought into an
investigation prior to a suspect\'s arrest, prosecutors can shape the
investigation\'s direction and scope by, for example, determining whom
to investigate and through what tactics.
[[\[FN96\]](#Document1zzFN_F96)]{.underline} Once an arrest is made, the
prosecutor\'s full powers come into play as she determines whether to
bring charges, what charges to bring, whether to drop charges once
brought, whether to negotiate a plea and under what terms, whether to
grant immunity, and what sentence to seek upon conviction.
[[\[FN97\]](#Document1zzFN_F97)]{.underline} This Part explores some of
the potential ways that cognitive bias may taint the decision making of
even ethical prosecutors when executing this broad discretion.

A. Investigation and Charging Decisions

The potential for cognitive bias to creep into prosecutorial decision
making starts from the earliest case-screening stages, when prosecutors
must determine whether sufficient evidence exists to proceed with a
prosecution. In hypothesis testing terms, they are testing the
hypothesis that the defendant is guilty.
[[\[FN98\]](#Document1zzFN_F98)]{.underline} The phenomenon of
confirmation bias suggests a natural tendency to review the reports not
for exculpatory evidence that might disconfirm the tested hypothesis,
but instead for inculpatory, confirming evidence.
[[\[FN99\]](#Document1zzFN_F99)]{.underline} In Earl Washington\'s case,
for example, the prosecutor might have been looking for the fact of the
confession, **\*1604** not for the surrounding circumstances that might
undermine its reliability.

If the investigation is still ongoing, confirmation bias might cause law
enforcement officers to conduct searches and to ask questions that will
yield either further inculpatory evidence or nothing at all. Just as
Snyder and Swann\'s subjects primarily asked suspected extroverts
questions like \"What would you do if you wanted to liven things up at a
party?,\" [[\[FN100\]](#Document1zzFN_F100)]{.underline} police eyeing
an initial suspect might ask, \"What were you and the victim fighting
about the night before the murder?\" Confirmation bias will reduce the
likelihood that the investigation will be directed in a manner that
would yield evidence of innocence.
[[\[FN101\]](#Document1zzFN_F101)]{.underline}

Recent attention to the risks of wrongful convictions
[[\[FN102\]](#Document1zzFN_F102)]{.underline} has brought to light the
influence of \"tunnel vision,\" whereby the belief that a particular
suspect has committed the crime might obfuscate an objective evaluation
of alternative suspects or theories.
[[\[FN103\]](#Document1zzFN_F103)]{.underline} In Illinois, a special
commission on capital punishment identified tunnel vision as a
contributing factor in many of the capital convictions of thirteen men
who were subsequently exonerated and released from death row.
[[\[FN104\]](#Document1zzFN_F104)]{.underline} Similarly, in Canada, a
report issued **\*1605** under the authority of federal, provincial, and
territorial justice ministers concluded that tunnel vision was one of
the eight most common factors leading to convictions of the innocent.
[[\[FN105\]](#Document1zzFN_F105)]{.underline} In cognitive terms, the
tunnel vision phenomenon is simply one application of the widespread
cognitive phenomenon of confirmation bias. Law enforcement fails to
investigate alternative theories of the crime because people generally
fail to look for evidence that disconfirms working hypotheses.

B. Sticky Presumptions of Guilt

If the prosecutor decides to pursue charges, the potential of cognitive
bias to taint decision making only worsens. Prosecutorial reluctance to
revisit a theory of guilt is difficult to explain when prosecutors are
viewed as rational actors. Attempts to do so often rely on accounts of
either individual or institutional indifference to the truth.
[[\[FN106\]](#Document1zzFN_F106)]{.underline} However, widespread
prosecutorial skepticism of innocence claims is wholly understandable,
and in fact predictable, in light of disconfirmation bias, belief
perseverance, and cognitive consistency. Although some have argued to
the contrary, [[\[FN107\]](#Document1zzFN_F107)]{.underline} many
commentators believe that the ethical prosecutor brings charges only
when she is sufficiently certain in her own mind of the accused\'s
guilt. [[\[FN108\]](#Document1zzFN_F108)]{.underline} Accordingly, if
charges are brought, the prosecutor **\*1606** has presumably made a
personal determination about the defendant\'s guilt. If additional
evidence arises, selective information processing comes into play. The
prosecutor will accept at face value any evidence that supports the
theory of guilt and will interpret ambiguous evidence in a manner that
strengthens her faith in the case.
[[\[FN109\]](#Document1zzFN_F109)]{.underline} Should any potentially
exonerative evidence arise, she will scrutinize it carefully, searching
for an explanation that undermines the reliability of the evidence or
otherwise reconciles it with the existing theory of guilt.
[[\[FN110\]](#Document1zzFN_F110)]{.underline} As a result of selective
information processing, she will continue to adhere to her initial
charging decision, regardless of the new information.

Indeed, even if the inculpatory evidence that initially supported the
charges is wholly undermined, belief perseverance suggests that the
theory of guilt will nevertheless linger. Others have noted the large
number of cases, such as Earl Washington\'s, in which prosecutors
continue to insist that a released defendant remains a suspect.
[[\[FN111\]](#Document1zzFN_F111)]{.underline} Although prosecutorial
resistance to claims of factual **\*1607** innocence is often attributed
to a prosecutorial culture tainted by politics and an indifference to
justice, [[\[FN112\]](#Document1zzFN_F112)]{.underline} sticky beliefs
about guilt may simply be the result of belief perseverance.

Consider, for example, the government\'s much criticized spy charges
against Ahmad Al Halabi, an Air Force translator at the U.S. naval base
at Guantanamo Bay. [[\[FN113\]](#Document1zzFN_F113)]{.underline} The
initial evidence appeared damning. Al Halabi had stored nearly two
hundred detainee notes in his personal laptop, had taken prohibited
photographs of the base\'s guard towers, and had plans to travel to
Syria. [[\[FN114\]](#Document1zzFN_F114)]{.underline} A computer analyst
concluded from an inspection of Al Halabi\'s laptop that he had already
e-mailed some of the stored documents over the Internet.
[[\[FN115\]](#Document1zzFN_F115)]{.underline}

Within weeks, a different computer investigator concluded that the
initial analysis of the laptop was flawed and that Al Halabi had not
sent any material over the Internet.
[[\[FN116\]](#Document1zzFN_F116)]{.underline} Nevertheless, for nearly
four months prosecutors continued to seek additional analysis from the
\"best places.\" [[\[FN117\]](#Document1zzFN_F117)]{.underline} Even
when prosecutors concluded that absolutely no evidence existed to show
that Al Halabi e-mailed any materials, the government dismissed only
those charges that alleged the transmittal of classified information;
sixteen charges, including espionage, remained.
[[\[FN118\]](#Document1zzFN_F118)]{.underline}

Still, the government\'s case had problems. The supposedly secret
documents on Al Halabi\'s laptop were innocuous communications, such as
letters from detainees to parents.
[[\[FN119\]](#Document1zzFN_F119)]{.underline} Moreover, he had an
explanation for their presence on his laptop: translators, including
himself, had been asked to alleviate a shortage of computers on the
**\*1608** base by using their personal computers.
[[\[FN120\]](#Document1zzFN_F120)]{.underline} Al Halabi did admit to
photographing the base, but only to remember his military service there,
not to conduct espionage. [[\[FN121\]](#Document1zzFN_F121)]{.underline}
He also offered a justification for his anticipated travel to Syria-his
upcoming wedding. [[\[FN122\]](#Document1zzFN_F122)]{.underline}
Nevertheless, prosecutors persisted, arguing that the wedding was a ruse
to conceal Al Halabi\'s true intentions of delivering secret information
to an enemy. [[\[FN123\]](#Document1zzFN_F123)]{.underline}

Ultimately, the government conceded that only one of the nearly two
hundred documents on Al Halabi\'s computer was classified as secret.
[[\[FN124\]](#Document1zzFN_F124)]{.underline} Nearly all charges were
dropped, and Al Halabi agreed to plead guilty to relatively minor
charges relating to the mishandling of a document, the prohibited
photographs of the camp, and his false statements concerning the
photographs. [[\[FN125\]](#Document1zzFN_F125)]{.underline} What was
once a death penalty case ended with a discharge and demotion, but no
additional jail time. [[\[FN126\]](#Document1zzFN_F126)]{.underline}

Some have suggested that Al Halabi was the victim of an anti-Muslim
witch hunt at Guantanamo. [[\[FN127\]](#Document1zzFN_F127)]{.underline}
Although Al Halabi\'s Muslim faith undoubtedly contributed to the
government\'s willingness to believe that he was a spy, belief
perseverance may have played a larger role in the government\'s
unwillingness to yield that belief. After the evidence of e-mailing was
demonstrated to be inaccurate, the theory of guilt continued to taint
the prosecutor\'s evaluation of the remaining evidence.
[[\[FN128\]](#Document1zzFN_F128)]{.underline} Indeed, even after the
government\'s case **\*1609** unraveled, Al Halabi\'s prosecutor
insisted, \"He was engaged in suspicious behavior. He took prohibited
photographs.\" [[\[FN129\]](#Document1zzFN_F129)]{.underline}

C. The Disclosure of Exculpatory Evidence

The fallibility of human cognition raises especially disturbing
questions about a prosecutor\'s ability to determine whether evidence is
exculpatory. Under Brady v. Maryland
[[\[FN130\]](#Document1zzFN_F130)]{.underline} and its progeny,
prosecutors must disclose materially exculpatory evidence to the
defense. [[\[FN131\]](#Document1zzFN_F131)]{.underline} The problem lies
in the Court\'s definition of \"materiality.\" Borrowing from the
Court\'s standard in Strickland v. Washington for granting a new trial
based on ineffective assistance of counsel,
[[\[FN132\]](#Document1zzFN_F132)]{.underline} the Court held in United
States v. Bagley that evidence is material and therefore required to be
disclosed to the defense \"only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.\"
[[\[FN133\]](#Document1zzFN_F133)]{.underline} The Court defined a
\"reasonable probability\" as \"a probability sufficient to undermine
confidence in the outcome.\"
[[\[FN134\]](#Document1zzFN_F134)]{.underline} The Court subsequently
made clear that the materiality standard is not whether the trial\'s
outcome would more likely than not have **\*1610** been different with
the evidence at issue, but whether \"the favorable evidence could
reasonably be taken to put the whole case in such a different light as
to undermine confidence in the verdict.\"
[[\[FN135\]](#Document1zzFN_F135)]{.underline}

Because Brady\'s materiality standard turns on a comparison of the
supposedly exculpatory evidence and the rest of the trial record,
applying the standard prior to trial requires that prosecutors engage in
a bizarre kind of anticipatory hindsight review. They must anticipate
what the other evidence against the defendant will be by the end of the
trial, and then speculate in hypothetical hindsight whether the evidence
at issue would place \"the whole case\"
[[\[FN136\]](#Document1zzFN_F136)]{.underline} in a different light.
[[\[FN137\]](#Document1zzFN_F137)]{.underline} Others have previously
criticized Brady for relying on prosecutors to determine the materiality
of evidence in their own files.
[[\[FN138\]](#Document1zzFN_F138)]{.underline} Prosecutors, some say,
are in a poor position to evaluate the materiality of evidence because
they are unaware of the planned defense strategy
[[\[FN139\]](#Document1zzFN_F139)]{.underline} and are, in any event,
conflicted by their desire to win.
[[\[FN140\]](#Document1zzFN_F140)]{.underline} Moreover, if a prosecutor
wrongly decides to withhold materially exculpatory evidence, the
misapplication of the standard may never be detected, and there will
never be judicial review of the prosecutor\'s decision.
[[\[FN141\]](#Document1zzFN_F141)]{.underline}

The point about Brady made in this Article is a slightly different one.
This Article does not dispute that a prosecutor\'s review of her own
file for exculpatory evidence might be biased; rather, this Article sees
cognitive psychology as providing a potential basis for explaining the
mechanism underlying the prosecutor\'s bias. From **\*1611** this
perspective, the prosecutor\'s application of Brady is biased not merely
because she is a zealous advocate engaged in a \"competitive
enterprise,\" [[\[FN142\]](#Document1zzFN_F142)]{.underline} but because
the theory she has developed from that enterprise might trigger
cognitive biases, such as confirmation bias and selective information
processing. [[\[FN143\]](#Document1zzFN_F143)]{.underline}

Brady requires a prosecutor who is determining whether to disclose a
piece of evidence to the defense to speculate first about how the
remaining evidence will come together against the defendant at trial,
and then about whether a reasonable probability exists that the piece of
evidence at issue would affect the result of the trial.
[[\[FN144\]](#Document1zzFN_F144)]{.underline} During the first step, a
risk exists that prosecutors will engage in biased recall, retrieving
from memory only those facts that tend to confirm the hypothesis of
guilt. [[\[FN145\]](#Document1zzFN_F145)]{.underline} Moreover, because
of selective information processing, the prosecutor will accept at face
value the evidence she views as inculpatory, without subjecting it to
the scrutiny that a defense attorney would encourage jurors to apply.
[[\[FN146\]](#Document1zzFN_F146)]{.underline}

Cognitive bias would also appear to taint the second speculative step of
the Brady analysis, requiring the prosecutor to determine the value of
the potentially exculpatory evidence in the context of the entire
record. [[\[FN147\]](#Document1zzFN_F147)]{.underline} Because of
selective information processing, the prosecutor will look for
weaknesses in evidence contradicting **\*1612** her existing belief in
the defendant\'s guilt. [[\[FN148\]](#Document1zzFN_F148)]{.underline}
In short, compared to a neutral decision maker, the prosecutor will
overestimate the strength of the government\'s case against the
defendant and underestimate the potential exculpatory value of the
evidence whose disclosure is at issue. As a consequence, the prosecutor
will fail to see materiality where it might in fact exist.

D. Stickier Presumptions of Guilt Postconviction

A further barrier to prosecutorial neutrality arises upon the
defendant\'s conviction. Just as the majority of commentators believe
that prosecutors should bring charges only when they are personally
convinced of an accused\'s culpability, prosecutors also have an
obligation to seek postconviction redress if they believe that an
innocent person has been convicted.
[[\[FN149\]](#Document1zzFN_F149)]{.underline} Even if prosecutors do
not seek the defendant\'s release sua sponte, one would at least expect
a conscientious prosecutor not to oppose relief for an innocent person
who requests it. [[\[FN150\]](#Document1zzFN_F150)]{.underline} The
problem, of course, is convincing the prosecutor that the defendant is,
in fact, innocent.

Whether the conviction was obtained through a jury verdict or the
defendant\'s own guilty plea, the prosecutor will view the conviction as
further evidence confirming the accuracy of her initial theory of guilt.
[[\[FN151\]](#Document1zzFN_F151)]{.underline} The prosecutor\'s
strengthened belief in her theory will continue to taint her analysis of
any new evidence submitted by the defense postconviction.
[[\[FN152\]](#Document1zzFN_F152)]{.underline}

Moreover, cognitive dissonance will further hinder the prosecutor\'s
ability to conduct a neutral evaluation of potentially **\*1613**
exculpatory evidence. [[\[FN153\]](#Document1zzFN_F153)]{.underline} The
conviction of an innocent person is inconsistent with the ethical
prosecutor\'s belief that charges should be brought only against
suspects who are actually guilty.
[[\[FN154\]](#Document1zzFN_F154)]{.underline} To avoid cognitive
dissonance, an ethical prosecutor might cling to the theory of guilt to
reconcile her conduct with her beliefs, especially after the defendant
has been convicted. From this perspective, prosecutorial bias against
postconviction exculpatory evidence is not an indication of corrupt
ethics at all; rather, it may indicate a deep but biasing adherence to
the edict that prosecutors should only do justice. A prosecutor may give
short shrift to claims of innocence, in other words, not because she is
callous about wrongful convictions, but because she cannot bring herself
to believe that she has played a part in one.

III\. Improving Prosecutorial Decision Making

Prosecutorial shortcomings such as tunnel vision, failures to disclose
exculpatory evidence, and stubborn adherence to theories of guilt are
often categorized as \"prosecutorial misconduct,\"
[[\[FN155\]](#Document1zzFN_F155)]{.underline} suggesting a culpable
mental state in the wrongdoing prosecutors. Not surprisingly, then,
commentators who seek to prevent these prosecutorial shortcomings look
for reform through improvements in prosecutorial values.
[[\[FN156\]](#Document1zzFN_F156)]{.underline} Common reform suggestions
include, **\*1614** for example, increases in both the frequency and
severity of sanctions against unethical prosecutors and a transformation
of a prosecutorial culture that is described as valuing conviction rates
above justice. [[\[FN157\]](#Document1zzFN_F157)]{.underline} If only
prosecutors cared about claims of innocence, the story seems to go, we
might trust their decision making.

Without disputing the suggestion that some prosecutors-both individually
and institutionally-could give more weight to doing justice, this
Article has tried to suggest that the story is a more complicated one.
This Article seeks to add a cognitive dimension to the traditional
explanation of \"misconduct,\" not because all prosecutors are well
intentioned, but because suggesting that only bad-intentioned
prosecutors are at risk of poor decision making is simply too easy.
Prosecutors sometimes make biased decisions, this Article has argued,
because people generally are biased decision makers. A cognitive
explanation for prosecutorial bias suggests that improving the values of
prosecutors is not enough; an improvement in the cognitive process is
required. This Part attempts to set forth some initial suggestions for
reform, aimed at reducing the influence of cognitive bias upon sound
prosecutorial decision making.

A. Improving the Initial Theory of Guilt

Confirmation bias, selective information processing, and belief
perseverance are all triggered by the decision maker\'s existing
beliefs. In the context of prosecutorial decision making, the biasing
theory is the prosecutor\'s belief that the defendant is guilty. Once
that belief is formed, confirmation bias causes her to seek information
that confirms the theory of guilt; selective information processing
causes her to trust information tending to confirm the theory of guilt
and distrust potentially exculpatory evidence; and belief perseverance
causes her to adhere to the theory of guilt even when the evidence
initially supporting that theory is undermined.
[[\[FN158\]](#Document1zzFN_F158)]{.underline}

Because the theory of guilt triggers sources of cognitive bias,
prosecutorial neutrality should be at its peak prior to the
prosecutor\'s **\*1615** charging decision, before she has formed a
theory of guilt that will taint subsequent information processing.
[[\[FN159\]](#Document1zzFN_F159)]{.underline} Accordingly, the accuracy
of a prosecutor\'s decision making would be maximized if she had access
to all relevant evidence gathered by the police prior to making the
initial charging decision. Early access to all relevant evidence could
be improved in two ways. First, prosecutors could be involved in
investigations prior to initiating formal charges, as they often are in
the federal system or in major crime investigations at the state level.
[[\[FN160\]](#Document1zzFN_F160)]{.underline} Second, in less serious
cases in which resources would not feasibly permit prosecutorial
involvement in the cases\'s investigative stage, police should record,
preserve, and disclose to the prosecutor all evidence collected during
their investigation, both inculpatory and exculpatory.
[[\[FN161\]](#Document1zzFN_F161)]{.underline}

Because police agencies act independently of prosecutors\' offices in
most jurisdictions, prosecutors have no guarantee that police will give
them the information they need to make a fully informed evaluation of a
case. [[\[FN162\]](#Document1zzFN_F162)]{.underline} Although Brady
provides defendants a right of access to material exculpatory evidence,
it does so through a trial right that governs the conduct of
prosecutors, not the police.
[[\[FN163\]](#Document1zzFN_F163)]{.underline} And although the Supreme
Court has extended prosecutors\' Brady obligations to all exculpatory
evidence known to law enforcement agencies \"acting on the government\'s
behalf in the case,\" [[\[FN164\]](#Document1zzFN_F164)]{.underline} no
**\*1616** doctrinal basis exists for assuring prosecutorial access to
this information.

Professor Fisher has suggested that prosecutorial access to exculpatory
information gathered by the police could be increased either directly
through legislation or indirectly through changes to the ethical rules
that govern prosecutors. [[\[FN165\]](#Document1zzFN_F165)]{.underline}
This Article seeks only to offer an additional reason for ensuring the
police\'s full disclosure of information to prosecutors and does not
explore the best doctrinal basis for doing so. Prosecutorial access to
all information gathered by police during their investigation is
essential not only to the ability of prosecutors to comply with Brady
but also to the accuracy of their initial charging decisions, which the
cognitive literature suggests are hard to shake.
[[\[FN166\]](#Document1zzFN_F166)]{.underline}

Of course, no process can assure one hundred percent accuracy in a
prosecutor\'s decision making. However, improving prosecutorial access
to investigatory information prior to the initial charging decision
improves decision-making outcomes in two related ways. First, it
maximizes the availability of prosecutorial neutrality, ensuring that
the prosecutor\'s initial theory about the case is based upon all
available information. Second, to the extent that the prosecutor\'s
initial charging decision will bias her subsequent decisions in the
case, improving the accuracy of the prosecutor\'s initial theory of
guilt will mitigate from a normative perspective the adverse effects of
cognitive bias upon the prosecutor\'s ultimate decisions.

B. Educating Prosecutors and Future Prosecutors

Another possible method of improving prosecutorial decision making is to
train prosecutors and future prosecutors about the sources of cognitive
bias and the potential effects of cognitive bias upon rational decision
making. Commentators often look to **\*1617** education to improve
prosecutorial decision making,
[[\[FN167\]](#Document1zzFN_F167)]{.underline} but they tend to
emphasize education about good prosecutorial values. They have argued,
for example, that prosecutors should be admonished to approach cases
with \"a healthy skepticism\" and \"to assume an active role in
confirming the truth of the evidence of guilt and investigating
contradictory evidence of innocence.\"
[[\[FN168\]](#Document1zzFN_F168)]{.underline} To the virtuous
prosecutor, these obligations are apparent. What is less apparent are
the cognitive biases that may taint the decision making of even ethical
prosecutors.

With increased academic attention to the effects of cognitive bias on
legal theory, doctrine, and practice, there has been some movement
toward teaching law students about the limits of their own rationality.
[[\[FN169\]](#Document1zzFN_F169)]{.underline} Additionally, recent
responses to wrongful convictions have included the recommendation that
prosecutors learn about cognitive bias and its effects upon
prosecutorial decision making.
[[\[FN170\]](#Document1zzFN_F170)]{.underline} Some empirical evidence
suggests that self-awareness of cognitive limitations can improve the
quality of individual decision making.
[[\[FN171\]](#Document1zzFN_F171)]{.underline} For example, recall that
in their well-known experiment involving the fake suicide note task,
Ross, Lepper, and Hubbard found that both the actors who performed the
task and the observers who watched maintained their beliefs about the
actors\' ability to perform the task, even after being told that the
experimenters provided false feedback.
[[\[FN172\]](#Document1zzFN_F172)]{.underline} As part of the study,
experimenters also exposed some subjects to a further \"process
debriefing,\" which provided a detailed discussion of the belief
**\*1618** perseverance phenomenon.
[[\[FN173\]](#Document1zzFN_F173)]{.underline} The experimenters found
that process debriefing eliminated the effects of the false feedback, at
least among the subjects who completed the task themselves.
[[\[FN174\]](#Document1zzFN_F174)]{.underline}

However, some social science evidence suggests that self-awareness is
not enough to prevent cognitive bias. For example, although Ross,
Lepper, and Hubbard found that \"process debriefing\" about the
phenomenon of belief perseverance eliminated belief perseverance among
subjects concerning their own performance on the suicide note task, they
also found continued perseverance effects among observer subjects,
despite process debriefing.
[[\[FN175\]](#Document1zzFN_F175)]{.underline} In other words, observer
subjects continued to view an actor\'s ability as consistent with the
discredited feedback. [[\[FN176\]](#Document1zzFN_F176)]{.underline}
Similarly, Wason found that alerting subjects to their errors in the
card-selection task did little to improve their accuracy in selecting
the appropriate cards for hypothesis testing.
[[\[FN177\]](#Document1zzFN_F177)]{.underline} Accordingly, although
education about cognitive bias may hold some potential to improve
prosecutorial decision making, it is doubtful that education alone will
assure prosecutorial neutrality.

C. The Practice of \"Switching Sides\"

One possible method for the ethical prosecutor to avoid cognitive bias
would be to act as her own neutralizing adversary by generating
pro-defense counterarguments to her own prosecutorial interpretations of
the evidence against the defendant. Cognitive research suggests that the
generation of explanatory arguments plays a role in belief perseverance,
and that generating explanatory counterarguments can mitigate belief
perseverance. For example, recall Anderson, Lepper, and Ross\'s study,
in which subjects were led to believe through fictionalized case
histories that either a negative or positive correlation existed between
risk preference and **\*1619** firefighting abilities.
[[\[FN178\]](#Document1zzFN_F178)]{.underline} The study replicated the
basic belief perseverance phenomenon, with subjects continuing to adhere
to beliefs about the perceived relationship even after learning that the
case histories were fictional.
[[\[FN179\]](#Document1zzFN_F179)]{.underline} Importantly though, the
researchers asked subjects prior to the debriefing to generate possible
explanations for the perceived relationship.
[[\[FN180\]](#Document1zzFN_F180)]{.underline} Those subjects who
generated a plausible theory to support the observed correlation
displayed more perseverance than subjects whose explanations simply
restated the existence of an observed correlation.
[[\[FN181\]](#Document1zzFN_F181)]{.underline}

One suggested mechanism for belief perseverance, then, is that once a
theory is formed to explain a data set, it exists apart from the data
and may continue to be treated as the most plausible theory even after
the underlying data is discredited.
[[\[FN182\]](#Document1zzFN_F182)]{.underline} Such a mechanism suggests
that generating countertheories should mitigate perseverance effects,
and the cognitive literature does provide some support for
counterexplanation as a debiasing technique.
[[\[FN183\]](#Document1zzFN_F183)]{.underline} Anderson and Sechler, for
example, found that **\*1620** subjects who were asked to generate
arguments to support an assigned position shifted their attitudes toward
the assigned position. [[\[FN184\]](#Document1zzFN_F184)]{.underline}
However, when the experimenters asked subjects to generate arguments to
support the opposite position, the belief perseverance effects were
reversed. [[\[FN185\]](#Document1zzFN_F185)]{.underline} Similarly,
Lord, Lepper, and Preston found a corrective effect when subjects were
induced to consider opposing possibilities, either upon explicit
instruction or through exposure to materials that made the opposing
possibility more salient. [[\[FN186\]](#Document1zzFN_F186)]{.underline}

In lawyer terms, a prosecutor seeking to avoid cognitive bias through
counterexplanation would simply switch litigation sides and play the
role of her own devil\'s advocate, a practice she probably learned her
first year of law school. The mental exercise of switching sides could
help mitigate cognitive bias in two separate contexts.
[[\[FN187\]](#Document1zzFN_F187)]{.underline} First, as evidence is
evaluated on an ongoing basis during a case\'s pendency, the prosecutor
could try to generate plausible explanations of both guilt and innocence
for each piece of incoming evidence. This procedure might serve as
inoculation against unwarranted belief perseverance by preventing the
prosecutor\'s theory of guilt from becoming disconnected from the
evidence underlying it. Second, if an early piece of evidence is
subsequently discredited, a prosecutor who had formed an opinion of
guilt based in part on the discredited evidence could imagine
alternative explanations for any remaining evidence. This
counterexplanation exercise of switching sides would assist the
prosecutor in an unbiased evaluation of the prosecution\'s remaining
case without the discredited evidence.

**\*1621** D. Second Opinions and Committee Input

Another possible method to mitigate the influence of cognitive bias on
prosecutorial decision making is to involve additional, unbiased
decision makers in the process. The reduction of bias might be achieved
internally within a prosecutor\'s office by establishing a process for
\"fresh looks\" of a file by a lawyer or a committee of lawyers whose
evaluation would not be tainted by earlier developments in the case.
[[\[FN188\]](#Document1zzFN_F188)]{.underline} For example, such a
process might be helpful when the prosecuting attorney learns of a new
piece of potentially exonerating evidence and the initial theory of
guilt might cause her to undervalue its importance.
[[\[FN189\]](#Document1zzFN_F189)]{.underline} A fresh look might also
be helpful when the credibility of a piece of evidence that contributed
to the prosecutor\'s initial charging decision is undermined. A separate
attorney would be able to comment on the strength of existing evidence
against the defendant without the taint of a preexisting theory of
guilt. [[\[FN190\]](#Document1zzFN_F190)]{.underline} Similarly, a fresh
look attorney would not be biased by the desire to avoid the cognitive
dissonance associated with having charged an innocent person with a
crime. [[\[FN191\]](#Document1zzFN_F191)]{.underline}

Limitations exist, however, in another prosecutor\'s ability to provide
a neutral evaluation of a coworker\'s case. Herbert Packer observed long
ago the operational \"presumption of guilt\" that allows the fast-paced
case screening process in most district attorneys\' offices to function.
[[\[FN192\]](#Document1zzFN_F192)]{.underline} At least some prosecutors
might open each **\*1622** new file assuming that police would not have
arrested the suspect and referred him for charges if they did not have
their man. [[\[FN193\]](#Document1zzFN_F193)]{.underline} Accordingly, a
prosecutor serving as a fresh look attorney may be tainted by an initial
theory of guilt even before reading a police report. Moreover, a fresh
look attorney may be reluctant to dissent from her colleague\'s initial
case evaluation. The social science literature demonstrates the
difficulty decision makers have in resisting the power of their peers.
[[\[FN194\]](#Document1zzFN_F194)]{.underline} For example, in Solomon
Asch\'s classic studies on conformity, he found that large percentages
of subjects could be induced to reach erroneous conclusions in a simple
line-matching task if a number of the researchers\' confederates first
answered incorrectly. [[\[FN195\]](#Document1zzFN_F195)]{.underline}

Accordingly, a more meaningful fresh look process might involve an
advisory committee that includes nonprosecutors. Asch\'s research on
conformity demonstrated the power of even one lone dissenting voice to
encourage people to depart from group opinion and assess a problem
independently. [[\[FN196\]](#Document1zzFN_F196)]{.underline} Judges,
defense attorneys, and civil practitioners would be less likely to apply
a presumption of guilt and would feel less pressure to conform their
views to other prosecutors; accordingly, they may be more likely to
provide a true fresh look.
[[\[FN197\]](#Document1zzFN_F197)]{.underline}

**\*1623** Some prosecutors might resist the involvement of outsiders in
the case-evaluation process as an unwarranted intrusion into
prosecutorial discretion. However, the full scope of prosecutorial
discretion could be preserved if the fresh look committee served solely
in an advisory capacity and the district attorney\'s office retained
ultimate decision-making authority. Moreover, the committee\'s advisory
capacity could be limited to specific questions, such as the strength of
a case or the potential value of exonerating evidence.
[[\[FN198\]](#Document1zzFN_F198)]{.underline} Such a limited consulting
role would not involve the committee in the broader policy questions
that generally justify deference to prosecutorial discretion, such as
the jurisdiction\'s enforcement priorities or where a single case fits
within those priorities. [[\[FN199\]](#Document1zzFN_F199)]{.underline}

With limited responsibilities, a diversely constituted fresh look
committee could be modeled loosely after the civilian review boards that
increasingly monitor police.
[[\[FN200\]](#Document1zzFN_F200)]{.underline} Most of those boards
participate in the oversight of police departments in narrow ways, such
as resolving complaints against individual police officers, without
interfering in broader questions about the department\'s policing
**\*1624** strategies. [[\[FN201\]](#Document1zzFN_F201)]{.underline}
Although police departments initially balked at even minimal civilian
involvement in their affairs, at least some role for external monitoring
of police is increasingly acceptable.
[[\[FN202\]](#Document1zzFN_F202)]{.underline} If prosecutors\' offices
could survive a similar cultural adjustment, they could have the
benefits of neutral fresh looks without sacrificing the autonomy brought
by prosecutorial discretion.
[[\[FN203\]](#Document1zzFN_F203)]{.underline}

E. Prosecutorial Involvement in Innocence Projects

Another proposal for reform is increased prosecutorial involvement in
the organizations that govern and address professional ethics among
lawyers generally and prosecutors specifically, such as state and local
bar committees, innocence projects, and groups concerned with providing
quality defense representation in criminal cases. Currently, prosecutors
are underrepresented in bar and pro bono oriented activities.
[[\[FN204\]](#Document1zzFN_F204)]{.underline} Apart from the benefits
that might inure to these organizations from increased and diversified
participation, prosecutorial involvement in such groups would provide
prosecutors with a venue for behavior demonstrating their commitment to
protecting innocent defendants. That objective behavioral commitment
could in turn assist prosecutors in their own internal decision making
by mitigating the biasing effects of cognitive dissonance.

Part II.D suggested that cognitive dissonance might prevent prosecutors
from neutrally evaluating defendants\' claims of innocence because
ethical prosecutors may not want to believe that they have convicted, or
even charged, an innocent person of a crime. Accordingly, to resist
dissonance, the prosecutor might underestimate **\*1625** the merits of
a claim to innocence. [[\[FN205\]](#Document1zzFN_F205)]{.underline}
However, recent research on dissonance suggests that dissonance
resistance can be mitigated when people are given an alternative method
of affirming their own values and self-perceptions. For example, Claude
Steele has theorized that cognitive dissonance results from people\'s
desire to affirm their own sense of integrity.
[[\[FN206\]](#Document1zzFN_F206)]{.underline} According to Steele\'s
self-affirmation theory, a person changes her beliefs in the face of
dissonant conduct because the act implies that the person is not
\"morally adequate\" and challenges the person\'s self-adequacy.
[[\[FN207\]](#Document1zzFN_F207)]{.underline} To affirm her own image,
the person adjusts her beliefs in response to the dissonance.
[[\[FN208\]](#Document1zzFN_F208)]{.underline} Steele\'s theory is
consistent with this Article\'s suggestion that prosecutors may resist
reevaluating a defendant\'s guilt in an attempt to preserve their own
sense of professional integrity.

Steele\'s research provides some support not only for the theorized
mechanism underlying the reaction to dissonance, but also for its
corollary that belief adjustment in response to dissonance can be
mitigated if people are provided an alternative mechanism for
self-affirmation. For example, Steele and Liu asked subjects to write an
essay supporting increases in tuition, even though the subjects opposed
the hikes. [[\[FN209\]](#Document1zzFN_F209)]{.underline} Subjects were
also asked to complete a questionnaire about politics and economics.
[[\[FN210\]](#Document1zzFN_F210)]{.underline} Replicating the classic
finding of cognitive dissonance, subjects generally demonstrated a
change in their beliefs, reporting less opposition to tuition increases
after writing essays favoring them.
[[\[FN211\]](#Document1zzFN_F211)]{.underline} However, the researchers
found that subjects who valued politics and economics, and who had
affirmed their values by completing the required questionnaire,
demonstrated less belief change as a result of the forced
counterattitudinal essay. [[\[FN212\]](#Document1zzFN_F212)]{.underline}
The researchers construed the **\*1626** data as suggesting that
salient, self-affirming cognitions might help people respond objectively
to information that challenges their self-image.
[[\[FN213\]](#Document1zzFN_F213)]{.underline}

Similarly, in another study, researchers found that subjects who were
asked to write an essay opposing state funding for the construction of
handicapped facilities demonstrated less change in their beliefs about
the appropriateness of such facilities if they expected to have an
opportunity to personally assist the handicapped after the experiment.
[[\[FN214\]](#Document1zzFN_F214)]{.underline}

These studies suggest that prosecutors could mitigate the effects of
dissonance resistance on decision making by creating alternative
mechanisms to support their own self images as ethical prosecutors
committed to the pursuit of justice. Personal involvement in
professional organizations that value legal and prosecutorial ethics
might increase the prosecutor\'s own confidence in her commitment to
protecting the innocent and may therefore decrease the likelihood of
bias in evaluating claims of innocence.

F. Repairing Brady

This Article\'s final suggestion for reform concerns a prosecutor\'s
disclosure of evidence to the defense under Brady v. Maryland.
[[\[FN215\]](#Document1zzFN_F215)]{.underline} The previously suggested
reforms of increased prosecutorial access to information, prosecutorial
training about cognitive bias, the practice of switching litigation
sides, internal fresh look reviews, and prosecutorial involvement in
professional organizations all carry some potential to improve a
prosecutor\'s application of the Brady standard because they all seek to
mitigate cognitive bias and will therefore increase the likelihood of an
accurate assessment of the exculpatory value of a piece of evidence.
Additional improvement**\*1627** in prosecutorial disclosure, however,
requires a rethinking of Brady\'s materiality standard.

As explored in Part II.C, limiting a prosecutor\'s constitutional
disclosure obligation to evidence that poses a \"reasonable
probability\" [[\[FN216\]](#Document1zzFN_F216)]{.underline} of
affecting a case\'s outcome invites decision making that is biased
against disclosure. Because the prosecutor has already formed a theory
of guilt, she will overestimate the value of inculpatory evidence,
underestimate the value of the exculpatory evidence, and ultimately
undercount instances of materiality.
[[\[FN217\]](#Document1zzFN_F217)]{.underline} The problem with the
Court\'s Brady doctrine is its use of a harmless error standard not just
in determining whether the reversal of a conviction is warranted based
on the nondisclosure of exculpatory evidence, but also in determining
whether disclosure is required in the first place.

This flaw results from the Court\'s misplaced reliance in the Brady
context on the standard established in Strickland v. Washington
[[\[FN218\]](#Document1zzFN_F218)]{.underline} for granting a new trial
based on ineffective assistance of counsel.
[[\[FN219\]](#Document1zzFN_F219)]{.underline} Importantly, unlike
Brady\'s materiality standard, the Court\'s test under Strickland is a
two-prong test that separates the standard for attorney performance from
the question of the defendant\'s entitlement to a new trial should
counsel fail to meet that standard.
[[\[FN220\]](#Document1zzFN_F220)]{.underline} The first prong makes
clear that the standard for attorney performance is that of \"reasonably
effective assistance.\" [[\[FN221\]](#Document1zzFN_F221)]{.underline}
The second prong of Strickland applies as a harmless error standard,
asking whether the deficiency of counsel\'s performance affected the
trial\'s outcome. [[\[FN222\]](#Document1zzFN_F222)]{.underline} In
light of the two **\*1628** prongs separating the standard for attorney
performance from the standard for a defendant\'s remedy, a defense
attorney who looked to Strickland for guidance about her duties of
performance would be hard pressed to argue that she was professionally,
ethically, and legally entitled to provide an incompetent, unreasonable
defense as long as her client was a lost cause.
[[\[FN223\]](#Document1zzFN_F223)]{.underline}

Unlike Strickland\'s two-prong test, the Court\'s prosecutorial
disclosure jurisprudence establishes a single standard for determining
both counsel\'s obligations and the defendant\'s entitlement to relief
if those obligations go unmet.
[[\[FN224\]](#Document1zzFN_F224)]{.underline} As a standard for
determining the availability of postconviction relief, Brady\'s
materiality requirement may be a sensible method of ensuring that
convictions are not lightly reversed when undisclosed evidence could not
have affected a case\'s disposition. It is not, however, a helpful
pretrial standard for prosecutors trying to determine at the outset
whether to disclose evidence to the defense.

The standard governing prosecutors\' disclosure to the defense should be
separate from the standard that determines whether a defendant\'s
conviction should be reversed due to a failure to disclose. Importantly,
to mitigate cognitive bias, the standard for disclosure should require
prosecutors to evaluate the potential exculpatory value of evidence from
the defense\'s perspective, not through the lens of their preexisting
theory of guilt. For example, Professor Capra suggested long ago that
prosecutors should be required to disclose any evidence \"favorable to
the defendant\'s preparation or presentation of his defense.\"
[[\[FN225\]](#Document1zzFN_F225)]{.underline}

Model Rule of Professional Conduct 3.8(d), the ethical rule governing
prosecutors\' disclosure of evidence, is a step in the right direction
because it requires prosecutors to \"make timely disclosure to the
defense of all evidence or information known to the prosecutor
**\*1629** that tends to negate the guilt of the accused or mitigates
the offense.\" [[\[FN226\]](#Document1zzFN_F226)]{.underline} Although
the rule primarily codifies prosecutors\' constitutional obligations
under Brady, the provision does not contain the limitation of
materiality found in the Court\'s due process jurisprudence.
[[\[FN227\]](#Document1zzFN_F227)]{.underline}

Unfortunately, an ethical rule that governs prosecutorial disclosure is
unlikely to alter the psychology of prosecutors trained to apply the
well-known, constitutionally based Brady standard. As an initial matter,
prosecutors receive far more training about the constitutional rules of
criminal procedure than about ethical rules.
[[\[FN228\]](#Document1zzFN_F228)]{.underline} Accordingly, they may not
even be aware that Model Rule 3.8(d) requires broader disclosure than
Brady. Even if aware of the gap between the Model Rule and Brady\'s
materiality standard, prosecutors may feel an obligation as an advocate
to violate Model Rule 3.8(d) and to pursue all constitutional means of
convicting a defendant they believe is guilty.
[[\[FN229\]](#Document1zzFN_F229)]{.underline} Because prosecutors,
unlike private attorneys, are members of law enforcement, empowered by
the executive branch, it is not uncommon for them to think of their
obligations only as law enforcement officers governed by constitutional
and statutory rules, not as lawyers governed by the rules of
professional conduct. [[\[FN230\]](#Document1zzFN_F230)]{.underline}

**\*1630** The failure of bar authorities to inject ethical rules into
the daily practice of prosecutors does little to alter this psychology.
Even prosecutors who violate their constitutional disclosure obligations
are rarely disciplined. [[\[FN231\]](#Document1zzFN_F231)]{.underline}
Thus, prosecutors who fail to disclose evidence that falls under Model
Rule 3.8(d), but not Brady, are unlikely to be disciplined.
[[\[FN232\]](#Document1zzFN_F232)]{.underline} In short, the rejection
of the materiality requirement by Model Rule 3.8(d), standing alone, is
unlikely to alter the decision-making process of a prosecutor evaluating
the exculpatory value of evidence.

Critics of Brady have suggested a variety of alternative reforms.
Professor Capra has argued for a right to in camera inspection of the
prosecutors\' files so that a judge can fully effectuate the
defendants\' Brady rights.
[[\[FN233\]](#Document1zzFN_F233)]{.underline} Still others have argued
for the \"open file\" policies already adopted by several jurisdictions
in capital prosecutions. [[\[FN234\]](#Document1zzFN_F234)]{.underline}
This Article\'s purpose is not to explore fully the **\*1631** relative
strengths and weaknesses of all possible reforms. Rather, this
Article\'s intention is to demonstrate that the Brady rule should be
modified to separate the standard that governs the disclosure
requirement from the harmless error standard that determines the
availability of a remedy if required discovery is withheld. Moreover, in
light of what we know about cognitive bias, the governing standard for
prosecutorial disclosure should attempt to avoid the recipe for
cognitive disaster that is inherent in the current Brady standard.
Broadening the Brady standard to include all favorable information,
rather than just materially favorable information, would be a helpful
move in the right direction. A standard turning on the favorability of
the evidence instead of its materiality invites reviewing the file from
the defense\'s perspective and therefore mitigates the influence of the
prosecutor\'s preexisting theory of guilt on the decision-making
process.

Conclusion

I wanted to write this Article to explore questions I have carried in my
own mind since my first weeks as a prosecutor. Fresh out of my judicial
clerkship, I was asked to help draft the papers required to obtain the
release of two people who had been convicted of murder five years
earlier. Police suspected that the woman whom the defendants supposedly
killed, Tanya Bennett, was in fact the victim of a self-named,
self-confessed serial killer. But even after the so-called Happy Face
Killer included Bennett on his list of victims and provided detailed
information about her murder, the prosecutors in my office who had
obtained the original convictions remained doubtful. The Happy Face
Killer must have known one of the convicted defendants, they speculated,
or perhaps read the details in the newspaper. Only when the man led
police to Bennett\'s long-abandoned purse, buried beneath half a
decade\'s growth of blackberry bushes near the Columbia River Gorge, did
the state agree to release the previously convicted defendants.

**\*1632** As a new lawyer reviewing the reports only with the benefit
of hindsight, I could see potential problems with the prosecution\'s
original case. Like Earl Washington\'s,
[[\[FN235\]](#Document1zzFN_F235)]{.underline} the defendants\'
convictions rested largely upon a retracted confession, obtained after
repeated police questioning and corroborated by little other evidence.
Nevertheless, I wondered as I drafted a memorandum summarizing the
events leading to the erroneous convictions, would I have done anything
differently? I do not purport to have the answer to that question today,
but I do know that it was a valid question to ask myself then and, more
importantly, a question that ethical prosecutors themselves need to
raise in daily practice.

This Article has attempted to explore how cognitive bias might trigger
poor decision making by prosecutors who intend to do justice. By doing
so, this Article seeks to complement rather than supplant the vast
literature that treats prosecutors as rational actors who choose to
engage in misconduct. Adding a cognitive dimension to the current
discussion of prosecutorial decision making is important in two
different ways.

First, it shapes the direction of reform. Although sanctions and other
alterations of the prosecutorial cost-benefit analysis may deter
wrongful conduct in prosecutors who are not motivated to do justice, a
cognitive explanation for how even virtuous prosecutors might contribute
to wrongful convictions suggests that good values are not enough. As an
admittedly introductory effort, this Article sets forth a few
suggestions for enhancing neutral decision making by ethical
prosecutors.

Moving beyond fault-based rhetoric to include a cognitive view of
prosecutorial decision making also establishes a necessary discursive
shift in the important, ongoing study of wrongful convictions. Using
only the language of fault in the discussion invites an adversarial
relationship between prosecutors and advocates for the innocent, because
prosecutors naturally resist their depiction as wrongdoers. By
antagonizing prosecutors and creating an opposing political force, the
language of fault impairs the chances for meaningful
prosecutor-initiated reforms, such as internal review **\*1633**
committees [[\[FN236\]](#Document1zzFN_F236)]{.underline} or office
guidelines to improve the exercise of prosecutorial discretion.
[[\[FN237\]](#Document1zzFN_F237)]{.underline}

In contrast, a cognitive explanation for faulty prosecutorial decision
making creates the potential to fold ethical prosecutors into the
dialogue. This discursive shift may encourage ethical prosecutors to
examine the danger that they might personally contribute to wrongful
convictions. Only when that happens can ethical prosecutors improve the
quality of their own decisions and attempt to implement reforms that
might improve the prosecutorial decision making of others.

[[\[FNa1\]](#Document1zzFN_Ba1)]{.underline}. Associate Professor,
Hofstra University School of Law. B.A., Reed College; J.D., Stanford Law
School. I would like to thank Matt Bodie, Robin Charlow, Eric Freedman,
James Garland, Rebecca Hollander-Blumoff, Julian Ku, and Norman Silber
for their helpful comments on previous drafts. I would also like to
thank participants in faculty workshops at Hofstra and Villanova law
schools, where earlier versions of this Article were presented. I am
grateful to Cynthia Leigh, reference librarian for the Hofstra Law
Library, and to Toi Frederick and Gretchen Rauch for their dedicated
research assistance.

[[\[FN1\]](#Document1zzFN_B1)]{.underline}. Maria Glod, DNA Not Enough
To Charge Va. Rapist: Authorities Kept Identity a Secret, Wash. Post,
Mar. 11, 2004, at B4.

[[\[FN2\]](#Document1zzFN_B2)]{.underline}. Id.

[[\[FN3\]](#Document1zzFN_B3)]{.underline}. [[Washington v. Murray, 952
F.2d 1472, 1478 n.5 (4th Cir.
1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1991205419&ReferencePosition=1478)]{.underline}
(noting the questionable circumstances surrounding Washington\'s
interrogation); Eric M. Freedman, [[Earl Washington\'s Ordeal, 29
Hofstra L. Rev. 1089, 1091- 94
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1160&FindType=Y&ReferencePositionType=S&SerialNum=0287574052&ReferencePosition=1091)]{.underline}
(detailing the history of the Washington \"confessions\").

[[\[FN4\]](#Document1zzFN_B4)]{.underline}. See [[Washington v. Murray,
4 F.3d 1285, 1286 (4th Cir.
1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=1993178104&ReferencePosition=1286)]{.underline};
see also Editorial, Justice Begrudged, N.Y. Times, Apr. 10, 2004, at A14
(advocating \"an honest vetting of the judicial process that allowed
\[Washington\'s\] name to be sullied in the first place\").

[[\[FN5\]](#Document1zzFN_B5)]{.underline}. See Glod, supra note 1
(\"There are several people who are potential suspects, and I cannot
rule out Earl Washington.\" (quoting prosecuting attorney)). The current
county prosecutor, who assumed office after Washington was convicted,
was perhaps even more insistent about his guilt, telling a local paper
after Washington\'s exoneration, \"It has been my position all along
that Earl Washington is guilty, and that is still my position.\"
Complaint ¶ 117, [[Washington v. Buraker, 322 F. Supp. 2d 692 (W.D. Va.
2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=4637&FindType=Y&SerialNum=2004638599)]{.underline}
(No. 3:02-CV-00106) (civil suit filed by Earl Washington against several
Virginia officials); see also Margaret Edds, An Expendable Man: The
Near-Execution of Earl Washington Jr. 181 (2003) (\"No one, it seemed,
was more convinced of Washington\'s guilt than \[the county\'s
prosecuting attorney\].\"). Washington\'s civil suit is still pending.
See [[Washington v. Wilmore, 407 F.3d 274,
275-](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=2006526331&ReferencePosition=275)]{.underline}
[[76 (4th Cir.
2005)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=2006526331&ReferencePosition=275)]{.underline}
(affirming the district court\'s denial of summary judgment on one of
Washington\'s claims).

[[\[FN6\]](#Document1zzFN_B6)]{.underline}. See Tracey L. Meares,
[[Rewards for Good Behavior: Influencing Prosecutorial Discretion and
Conduct with Financial Incentives, 64 Fordham L. Rev. 851, 890
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0106093635&ReferencePosition=890)]{.underline}
(\"Prosecutorial misconduct is readily apparent to any lawyer who keeps
abreast of appellate review of criminal convictions.\").

[[\[FN7\]](#Document1zzFN_B7)]{.underline}. See Stanley Z. Fisher, In
Search of the Virtuous Prosecutor: A Conceptual Framework, 15 Am. J.
Crim. L. 197, 204-13 (1988) (describing factors that cause prosecutors
to pursue cases \"overzealously\"); Bennett L. Gershman, The [[New
Prosecutors, 53 U. Pitt. L. Rev. 393, 458
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0101944359&ReferencePosition=458)]{.underline}
(arguing that \"the present ethos of overzealous prosecutorial
advocacy\" is \"ingrained\"); Judith L. Maute, \"In [[Pursuit of
Justice\" in High Profile Criminal Matters, 70 Fordham L. Rev. 1745,
1747
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0288837705&ReferencePosition=1747)]{.underline}
(noting that \"\[o\]verzealous prosecutors may become too closely
aligned with \... witnesses who are willing to shade or falsify their
testimony in order to obtain a conviction\").

[[\[FN8\]](#Document1zzFN_B8)]{.underline}. See Kenneth Bresler, \"[[I
Never Lost a Trial\": When Prosecutors Keep Score of Criminal
Convictions, 9 Geo. J. Legal Ethics 537, 541
(1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1655&FindType=Y&ReferencePositionType=S&SerialNum=0106013303&ReferencePosition=541)]{.underline}
(decrying prosecutors who \"keep personal tallies \... for
self-promotion\"); Meares, supra note 6, at 882 (describing the \"desire
to \'win\"\' as \"a central characteristic of prosecutorial culture\");
Daniel S. Medwed, The [[Zeal Deal: Prosecutorial Resistance to
Post-Conviction Claims of Innocence, 84 B.U. L. Rev. 125, 134
(2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3197&FindType=Y&ReferencePositionType=S&SerialNum=0297539918&ReferencePosition=134)]{.underline}
(attributing the lack of prosecutorial support for postconviction claims
of innocence in part to \"the emphasis district attorneys\' offices
place on conviction rates\").

[[\[FN9\]](#Document1zzFN_B9)]{.underline}. Bennett L. Gershman, The
[[Prosecutor\'s Duty to Truth, 14 Geo. J. Legal Ethics 309, 350
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1655&FindType=Y&ReferencePositionType=S&SerialNum=0296469495&ReferencePosition=350)]{.underline};
see also Anthony V. Alfieri, [[Prosecuting Race, 48 Duke L.J. 1157,
1242-45
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1133&FindType=Y&SerialNum=0112985397)]{.underline}
(discussing prosecutorial discretion guided by \"moral norms\"); Bruce
A. Green, The [[Role of Personal Values in Professional Decisionmaking,
11 Geo. J. Legal Ethics 19, 59-60
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1655&FindType=Y&ReferencePositionType=S&SerialNum=0108868751&ReferencePosition=59)]{.underline}
(advocating ad hoc invocation of moral judgment).

[[\[FN10\]](#Document1zzFN_B10)]{.underline}. Prosecutors are not only
obligated to act as advocates to enforce the law but are also entrusted
to ensure that justice is met. See Model Rules of Prof\'l Conduct R. 3.8
cmt. 1 (2001) (\"A prosecutor has the responsibility of a minister of
justice and not simply that of an advocate.\"); cf. Steven K. Berenson,
[[Public Lawyers, Private Values: Can, Should, and Will Government
Lawyers Serve the Public Interest?, 41 B.C. L. Rev. 789, 792-94
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1101&FindType=Y&ReferencePositionType=S&SerialNum=0282252016&ReferencePosition=792)]{.underline}
(discussing the public interests served by prosecutors).

[[\[FN11\]](#Document1zzFN_B11)]{.underline}. See generally Bruce A.
Green, [[Why Should Prosecutors \"Seek Justice\"?, 26 Fordham Urb. L.J.
607, 636
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1143&FindType=Y&ReferencePositionType=S&SerialNum=0110970002&ReferencePosition=636)]{.underline}
(emphasizing a prosecutor\'s unique \"duty to avoid the public
perception that criminal proceedings are unfair\"); Fred C. Zacharias,
[[Structuring the Ethics of Prosecutorial Trial Practice: Can
Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 107-09
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&ReferencePositionType=S&SerialNum=0101475133&ReferencePosition=107)]{.underline}
(describing the psychological factors that limit the effectiveness of
\"do justice\" provisions).

[[\[FN12\]](#Document1zzFN_B12)]{.underline}. Bruce A. Green,
[[Prosecutorial Ethics as Usual, 2003 U. Ill. L. Rev. 1573,
1587](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1264&FindType=Y&ReferencePositionType=S&SerialNum=0296777683&ReferencePosition=1587)]{.underline}.

[[\[FN13\]](#Document1zzFN_B13)]{.underline}. Kenneth Rosenthal,
[[Prosecutor Misconduct, Convictions, and Double Jeopardy: Case Studies
in an Emerging Jurisprudence, 71 Temp. L. Rev. 887, 889
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1566&FindType=Y&ReferencePositionType=S&SerialNum=0111016092&ReferencePosition=889)]{.underline}
(noting an \"absence of disciplinary sanctions against prosecutors, even
in the most egregious cases\"); Fred C. Zacharias, The [[Professional
Discipline of Prosecutors, 79 N.C. L. Rev. 721
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1199&FindType=Y&SerialNum=0283608048)]{.underline}
(assessing the lack of discipline for prosecutorial misconduct).

[[\[FN14\]](#Document1zzFN_B14)]{.underline}. Berenson, supra note 10,
at 846 (recommending that professional advancement in prosecutors\'
offices \"should be based on richer measures of compliance with the \'do
justice\' standard, rather than simply on conviction rates\"); Erwin
Chemerinsky, The [[Role of Prosecutors in Dealing with Police Abuse: The
Lessons of Los Angeles, 8 Va. J. Soc. Pol\'y & L. 305, 320-21
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=102194&FindType=Y&ReferencePositionType=S&SerialNum=0289386803&ReferencePosition=320)]{.underline}
(suggesting that prosecutors be rewarded with promotion opportunities
for identifying police misconduct); Medwed, supra note 8, at 172
(advocating incentives for prosecutors to respond to postconviction
claims of innocence).

[[\[FN15\]](#Document1zzFN_B15)]{.underline}. Meares, supra note 6, at
873-74 (proposing the reduction of overcharging by rewarding prosecutors
financially for obtaining convictions on charges initially pursued).

[[\[FN16\]](#Document1zzFN_B16)]{.underline}. See Ziva Kunda, Social
Cognition: Making Sense of People 211-63 (1999); Richard Nisbett & Lee
Ross, Human Inference: Strategies and Shortcomings of Social Judgment
17-42 (1980); Steven Pinker, How the Mind Works 175 (1997); see also
Cass R. Sunstein, [[Behavioral Analysis of Law, 64 U. Chi. L. Rev. 1175,
1175
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0108527883&ReferencePosition=1175)]{.underline}
(noting that although \"\[c\]ognitive errors \... may press behavior far
from the anticipated directions,\" human decision making is not
\"unpredictable, systematically irrational, random, rule-free, or
elusive to social scientists\"). See generally Daniel Kahneman, Paul
Slovic & Amos Tversky, Judgment Under Uncertainty: Heuristics and Biases
(1982).

[[\[FN17\]](#Document1zzFN_B17)]{.underline}. Traditional law and
economics assumes that actors make utility-maximizing decisions about
their behavior, weighing with perfect rationality the benefits of a
behavior against its costs, assessed by the likely sanction and
probability of detection. See, e.g., A. Mitchell Polinsky, An
Introduction to Law and Economics 77-78 (2d ed. 1989).

[[\[FN18\]](#Document1zzFN_B18)]{.underline}. See generally Cass R.
Sunstein, Behavioral Law and Economics (2000); Christine Jolls, Cass R.
Sunstein & Richard H. Thaler, [[Theories and Tropes: A Reply to Posner
and Kelman, 50 Stan. L. Rev. 1593, 1594-96
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0108978013&ReferencePosition=1594)]{.underline};
Russell B. Korobkin & Thomas S. Ulen, [[Law and Behavioral Science:
Removing the Rationality Assumption from Law and Economics, 88 Cal. L.
Rev. 1051, 1075
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&ReferencePositionType=S&SerialNum=0280311434&ReferencePosition=1075)]{.underline}.
For example, reliance on the \"availability heuristic\" causes people to
overestimate the occurrence of events that are easily imagined. Amos
Tversky & Daniel Kahneman, Availability: A Heuristic for Judging
Frequency and Probability, 5 Cognitive Psychol. 207, 208 (1973). As a
result, they may be more fearful of and more willing to devote resources
to prevent highly salient and unlikely occurrences, such as airplane
crashes, than less salient and more likely events, such as automobile
accidents. See generally Timur Kuran & Cass R. Sunstein, [[Availability
Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 685
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0110832181&ReferencePosition=685)]{.underline}.
Similarly, the \"endowment effect\" describes the overvaluation of
property that is already owned, which can distort efficient bargaining.
See generally Russell Korobkin, The [[Endowment Effect and Legal
Analysis, 97 Nw. U. L. Rev. 1227, 1232-35
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0294374785&ReferencePosition=1232)]{.underline}.

[[\[FN19\]](#Document1zzFN_B19)]{.underline}. Rebecca Hollander-Blumoff
& Matthew T. Bodie, The [[Effects of Jury Ignorance About Damage Caps:
The Case of the 1991 Civil Rights Act, 90 Iowa L. Rev. 1361, 1375-88
(2005)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1168&FindType=Y&ReferencePositionType=S&SerialNum=0304747430&ReferencePosition=1375)]{.underline}
(discussing the effects on jury decision making of disclosing the cap on
jury awards); Saul M. Kassin, The [[American Jury: Handicapped in the
Pursuit of Justice, 51 Ohio St. L.J. 687, 697
(1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1216&FindType=Y&ReferencePositionType=S&SerialNum=0101391266&ReferencePosition=697)]{.underline}
(noting that cautionary instructions and cross-examination may not cure
damage of misleading witness testimony because early impressions are
resistant to change); Edward J. McCaffery et al., [[Framing the Jury:
Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev.
1341, 1354-73
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0105641449&ReferencePosition=1354)]{.underline}
(considering how the use of cognitive theory in the framing of jury
instructions can affect monetary awards for pain and suffering).

[[\[FN20\]](#Document1zzFN_B20)]{.underline}. Dan Simon, [[A
Psychological Model of Judicial Decision Making, 30 Rutgers L.J. 1,
121-23
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1226&FindType=Y&SerialNum=0110784246)]{.underline}.

[[\[FN21\]](#Document1zzFN_B21)]{.underline}. Kuran & Sunstein, supra
note 18, at 711-23.

[[\[FN22\]](#Document1zzFN_B22)]{.underline}. Stephanie Stern,
[[Cognitive Consistency: Theory Maintenance
and](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0292127175&ReferencePosition=620)]{.underline}
[[Administrative Rulemaking, 63 U. Pitt. L. Rev. 589, 620-30
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0292127175&ReferencePosition=620)]{.underline}.

[[\[FN23\]](#Document1zzFN_B23)]{.underline}. Donald C. Langevoort,
[[Organized Illusions: A Behavioral Theory of Why Corporations Mislead
Stock Market Investors (And Cause Other Social Harms), 146 U. Pa. L.
Rev. 101, 130-48
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0108744192&ReferencePosition=130)]{.underline}.

[[\[FN24\]](#Document1zzFN_B24)]{.underline}. Melvin Aron Eisenberg, The
[[Limits of Cognition and the Limits of Contract, 47 Stan. L. Rev. 211,
225-58
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0105005819&ReferencePosition=225)]{.underline}.

[[\[FN25\]](#Document1zzFN_B25)]{.underline}. Norman I. Silber,
Observing Reasonable Consumers: Cognitive Psychology, Consumer Behavior
and Consumer Law, 2 Loy. Consumer L. Rep. 69, 71 (1990).

[[\[FN26\]](#Document1zzFN_B26)]{.underline}. Linda Hamilton Krieger,
The [[Content of Our Categories: A Cognitive Bias Approach to
Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161,
1186-217
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0105712518&ReferencePosition=1186)]{.underline}.

[[\[FN27\]](#Document1zzFN_B27)]{.underline}. Cass R. Sunstein,
[[Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L.J. 71,
88-90
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0281684402&ReferencePosition=88)]{.underline}.

[[\[FN28\]](#Document1zzFN_B28)]{.underline}. H. Richard Uviller,
Commentary, The Virtuous Prosecutor in Quest of an Ethical Standard:
Guidance from the ABA, 71 Mich. L. Rev. 1145, 1155-59 (1973) (discussing
ethical problems unique to prosecutors).

[[\[FN29\]](#Document1zzFN_B29)]{.underline}. Monroe H. Freedman,
Understanding Lawyers\' Ethics 219 (1990) (speaking of the charging
obligations of \"conscientious prosecutors\").

[[\[FN30\]](#Document1zzFN_B30)]{.underline}. Leslie C. Griffin, The
[[Prudent Prosecutor, 14 Geo. J. Legal Ethics 259, 261
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1655&FindType=Y&ReferencePositionType=S&SerialNum=0296469494&ReferencePosition=261)]{.underline}
(discussing the moral and legal discretion held by prosecutors in
performing their jobs).

[[\[FN31\]](#Document1zzFN_B31)]{.underline}. Nisbett & Ross, supra note
16, at 169.

[[\[FN32\]](#Document1zzFN_B32)]{.underline}. Id.

[[\[FN33\]](#Document1zzFN_B33)]{.underline}. See Charles G. Lord, Lee
Ross & Mark R. Lepper, Biased Assimilation and Attitude Polarization:
The Effects of Prior Theories on Subsequently Considered Evidence, 37 J.
Personality & Soc. Psychol. 2098 (1979); Mark Snyder & William B. Swann,
Jr., Hypothesis-Testing Processes in Social Interaction, 36 J.
Personality & Soc. Psychol. 1202 (1978).

[[\[FN34\]](#Document1zzFN_B34)]{.underline}. See infra Part I.A.

[[\[FN35\]](#Document1zzFN_B35)]{.underline}. See infra Part I.B.

[[\[FN36\]](#Document1zzFN_B36)]{.underline}. See infra Part I.C.

[[\[FN37\]](#Document1zzFN_B37)]{.underline}. See infra Part I.D.

[[\[FN38\]](#Document1zzFN_B38)]{.underline}. P. C. Wason & P. N.
Johnson-Laird, Psychology of Reasoning: Structure and Content 210-11
(1972).

[[\[FN39\]](#Document1zzFN_B39)]{.underline}. Id. at 202-17; see also
Kunda, supra note 39, at 112-17 (describing hypothesis confirmation when
evaluating other people); Joshua Klayman & Young-Won Ha, Confirmation,
Disconfirmation, and Information in Hypothesis Testing, 94 Psychol. Rev.
211 (1987) (arguing that confirmation bias is better understood as a
positive test strategy).

[[\[FN40\]](#Document1zzFN_B40)]{.underline}. P. C. Wason, Reasoning
About a Rule, 20 Q. J. Experimental Psychol. 273, 273 (1968).

[[\[FN41\]](#Document1zzFN_B41)]{.underline}. Id.

[[\[FN42\]](#Document1zzFN_B42)]{.underline}. Id. at 273-75.

[[\[FN43\]](#Document1zzFN_B43)]{.underline}. See generally Karl R.
Popper, The Logic of Scientific Discovery 32- 33 (1968).

[[\[FN44\]](#Document1zzFN_B44)]{.underline}. Wason, supra note 40, at
273-77.

[[\[FN45\]](#Document1zzFN_B45)]{.underline}. Id. at 276-77.

[[\[FN46\]](#Document1zzFN_B46)]{.underline}. Id. at 280-81. To discover
a vowel on the other side of the even number card would simply provide
an example consistent with the \"if vowel, then even number\" rule.
However, to discover a consonant on the other side would do nothing to
disprove the \"if vowel, then even number\" rule, which says nothing
about the reverse side of consonant cards. Id. at 280.

[[\[FN47\]](#Document1zzFN_B47)]{.underline}. Id.

[[\[FN48\]](#Document1zzFN_B48)]{.underline}. Snyder & Swann, supra note
33, at 1202.

[[\[FN49\]](#Document1zzFN_B49)]{.underline}. Id. at 1203.

[[\[FN50\]](#Document1zzFN_B50)]{.underline}. Id. at 1203-04.

[[\[FN51\]](#Document1zzFN_B51)]{.underline}. Id. at 1202-12.

[[\[FN52\]](#Document1zzFN_B52)]{.underline}. Id.

[[\[FN53\]](#Document1zzFN_B53)]{.underline}. Id. at 1204.

[[\[FN54\]](#Document1zzFN_B54)]{.underline}. See Mark Snyder & Nancy
Cantor, Testing Hypotheses About Other People: The Use of Historical
Knowledge, 15 J. Experimental Soc. Psychol. 330 (1979).

[[\[FN55\]](#Document1zzFN_B55)]{.underline}. Id. at 330-33.

[[\[FN56\]](#Document1zzFN_B56)]{.underline}. Id. at 333.

[[\[FN57\]](#Document1zzFN_B57)]{.underline}. Id. at 334-35.

[[\[FN58\]](#Document1zzFN_B58)]{.underline}. Id. at 341-42.

[[\[FN59\]](#Document1zzFN_B59)]{.underline}. Lord, Ross & Lepper, supra
note 33, at 2098.

[[\[FN60\]](#Document1zzFN_B60)]{.underline}. Id. at 2100.

[[\[FN61\]](#Document1zzFN_B61)]{.underline}. Id.

[[\[FN62\]](#Document1zzFN_B62)]{.underline}. Id. at 2101-02.

[[\[FN63\]](#Document1zzFN_B63)]{.underline}. Id. at 2103.

[[\[FN64\]](#Document1zzFN_B64)]{.underline}. Id. at 2103-04.

[[\[FN65\]](#Document1zzFN_B65)]{.underline}. See, e.g., Craig A.
Anderson et al., Argument Availability as a Mediator of Social Theory
Perseverance, 3 Soc. Cognition 235, 244-48 (1985) (argument
availability); Peter H. Ditto & David F. Lopez, Motivated Skepticism:
Use of Differential Decision Criteria for Preferred and Nonpreferred
Conclusions, 63 J. Personality & Soc. Psychol. 568 (1992) (information
evaluation); Kari Edwards & Edward E. Smith, A Disconfirmation Bias in
the Evaluation of Arguments, 71 J. Personality & Soc. Psychol. 5 (1996)
(argument evaluation); Charles G. Lord, Mark R. Lepper & Elizabeth
Preston, Considering the Opposite: A Corrective Strategy for Social
Judgment, 47 J. Personality & Soc. Psychol. 1231 (1984) (social
judgment); Arthur G. Miller et al., The Attitude Polarization
Phenomenon: Role of Response Measure, Attitude Extremity, and Behavioral
Consequences of Reported Attitude Change, 64 J. Personality & Soc.
Psychol. 561, 563-64 (1993) (attitude polarization among research
participants with a broad range of preexisting attitudes); Geoffrey D.
Munro & Peter H. Ditto, Biased Assimilation, Attitude Polarization, and
Affect in Reactions to Stereotype-Relevant Scientific Information, 23
Personality & Soc. Psychol. Bull. 636 (1997) (biased assimilation and
attitude polarization in the processing of stereotype-relevant
scientific information); Norbert Schwarz et al., Interactive Effects of
Writing and Reading a Persuasive Essay on Attitude Change and Selective
Exposure, 16 J. Experimental Soc. Psychol. 1, 5-9 (1980) (reporting that
subjects found sample letters to the editor more convincing and less
biased when the letters supported their own positions). But see Miller
et al., supra, at 561-69 (replicating the study by Lord, Ross, and
Lepper, but finding no attitude polarization when subjects\' positions
were directly assessed by asking the same questions presented prior to
the administration of the opposing studies).

[[\[FN66\]](#Document1zzFN_B66)]{.underline}. See Ziva Kunda, The Case
for Motivated Reasoning, 108 Psychol. Bull. 480, 493-95 (1990); Tom
Pyszczynski & Jeff Greenberg, Toward an Integration of Cognitive and
Motivational Perspectives on Social Inference: A Biased
Hypothesis-Testing Model, in 20 Advances in Experimental Social
Psychology 297, 333 (Leonard Berkowitz ed., 1987); Tom Pyszczynski, Jeff
Greenberg & Kathleen Holt, Maintaining Consistency Between Self-Serving
Beliefs and Available Data: A Bias in Information Evaluation, 11
Personality & Soc. Psychol. Bull. 179, 186-88 (1985).

[[\[FN67\]](#Document1zzFN_B67)]{.underline}. See Tom Pyszczynski, Jeff
Greenberg & John LaPrelle, Social Comparison After Success and Failure:
Biased Search for Information Consistent with a Self-Serving Conclusion,
21 J. Experimental Soc. Psychol. 195, 206-11 (1985) (\"In both studies
failure subjects showed a high level of interest in acquiring additional
information when they expected it to reveal that most other students
performed poorly and very little interest in acquiring additional
information when they expected it to reveal that most others performed
well.\").

[[\[FN68\]](#Document1zzFN_B68)]{.underline}. See Ditto & Lopez, supra
note 65, at 580-82 (suggesting a mechanism by which motivational factors
affect judgment processes); Edwards & Smith, supra note 65, at 18
(summarizing the values that supposedly underlie the motivation to
defend prior beliefs).

[[\[FN69\]](#Document1zzFN_B69)]{.underline}. See Edwards & Smith, supra
note 65, at 18 (proposing a model to account for disconfirmation bias).

[[\[FN70\]](#Document1zzFN_B70)]{.underline}. Id.

[[\[FN71\]](#Document1zzFN_B71)]{.underline}. Nisbett & Ross, supra note
16, at 171 (addressing the normative status of disconfirmation bias);
Edwards & Smith, supra note 65, at 22 (same).

[[\[FN72\]](#Document1zzFN_B72)]{.underline}. Edwards & Smith, supra
note 65, at 22.

[[\[FN73\]](#Document1zzFN_B73)]{.underline}. Id.

[[\[FN74\]](#Document1zzFN_B74)]{.underline}. Nisbett & Ross, supra note
16, at 171.

[[\[FN75\]](#Document1zzFN_B75)]{.underline}. See Darryl K. Brown,
[[Rationing Criminal Defense Entitlements: An Argument from
Institutional Design, 104 Colum. L. Rev. 801, 822-25
(2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&ReferencePositionType=S&SerialNum=0297904334&ReferencePosition=822)]{.underline}
(discussing sources of wrongful convictions); Stanley Z. Fisher & Ian
McKenzie, [[A Miscarriage of Justice in Massachusetts: Eyewitness
Identification Procedures, Unrecorded Admissions, and a Comparison with
English Law, 13 B.U. Pub. Int. L.J. 1, 3-15
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=102264&FindType=Y&ReferencePositionType=S&SerialNum=0297765194&ReferencePosition=3)]{.underline}
(same).

[[\[FN76\]](#Document1zzFN_B76)]{.underline}. Lee Ross, Mark R. Lepper &
Michael Hubbard, Perseverance in Self-Perception and Social Perception:
Biased Attributional Processes in the Debriefing Paradigm, 32 J.
Personality & Soc. Psychol. 880, 882 (1975).

[[\[FN77\]](#Document1zzFN_B77)]{.underline}. Id. at 882-83.

[[\[FN78\]](#Document1zzFN_B78)]{.underline}. Id. at 883.

[[\[FN79\]](#Document1zzFN_B79)]{.underline}. Id.

[[\[FN80\]](#Document1zzFN_B80)]{.underline}. Id.

[[\[FN81\]](#Document1zzFN_B81)]{.underline}. Id. at 883-84.

[[\[FN82\]](#Document1zzFN_B82)]{.underline}. Id. at 884-87.

[[\[FN83\]](#Document1zzFN_B83)]{.underline}. Id.

[[\[FN84\]](#Document1zzFN_B84)]{.underline}. Craig A. Anderson, Mark R.
Lepper & Lee Ross, Perseverance of Social Theories: The Role of
Explanation in the Persistence of Discredited Information, 39 J.
Personality & Soc. Psychol. 1037, 1039-40 (1980).

[[\[FN85\]](#Document1zzFN_B85)]{.underline}. Id.

[[\[FN86\]](#Document1zzFN_B86)]{.underline}. Id. at 1040-42.

[[\[FN87\]](#Document1zzFN_B87)]{.underline}. Id. at 1045.

[[\[FN88\]](#Document1zzFN_B88)]{.underline}. See generally Leon
Festinger, A Theory of Cognitive Dissonance 1-31 (1957) (explaining that
individuals seek to reduce dissonance and achieve consonance between
their beliefs and behavior, and that individuals will often avoid
situations that give rise to dissonance).

[[\[FN89\]](#Document1zzFN_B89)]{.underline}. Leon Festinger & James M.
Carlsmith, Cognitive Consequences of Forced Compliance, 58 J. Abnormal &
Soc. Psychol. 203, 204-07 (1959).

[[\[FN90\]](#Document1zzFN_B90)]{.underline}. Id. at 207-08.

[[\[FN91\]](#Document1zzFN_B91)]{.underline}. Id. at 209-10.

[[\[FN92\]](#Document1zzFN_B92)]{.underline}. Id.

[[\[FN93\]](#Document1zzFN_B93)]{.underline}. Id.

[[\[FN94\]](#Document1zzFN_B94)]{.underline}. See, e.g., Robert B.
Cialdini, Influence: Science and Practice 73- 92 (3d ed. 1993) (stating
that people are more likely to agree to substantial requests after first
agreeing to small ones); Elliot Aronson & Judson Mills, The Effect of
Severity of Initiation on Liking for a Group, 59 J. Abnormal & Soc.
Psychol. 177, 177-81 (1959) (reporting that subjects who were required
to undergo an embarrassing initiation to join a group subsequently
evaluated the group as more interesting than did control subjects);
Robert E. Knox & James A. Inkster, Postdecision Dissonance at Post Time,
8 J. Personality & Soc. Psychol. 319, 319 (1968) (finding that racetrack
bettors upgraded the likelihood of their horses winning after placing a
bet).

[[\[FN95\]](#Document1zzFN_B95)]{.underline}. See supra notes 7-16 and
accompanying text.

[[\[FN96\]](#Document1zzFN_B96)]{.underline}. Griffin, supra note 30, at
266-68.

[[\[FN97\]](#Document1zzFN_B97)]{.underline}. For a discussion of the
powers of the prosecuting attorney, see generally Angela J. Davis, The
[[American Prosecutor: Independence, Power, and the Threat of Tyranny,
86 Iowa L. Rev. 393, 432-38
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1168&FindType=Y&ReferencePositionType=S&SerialNum=0283193025&ReferencePosition=432)]{.underline}
(describing prosecutorial abuse of the charging power); Green, supra
note 12, at 1587-88 (describing prosecutorial discretion); Griffin,
supra note 30, at 263-303 (discussing the various aspects and
restrictions on prosecutorial discretion as well as recommending
standards that should guide it).

[[\[FN98\]](#Document1zzFN_B98)]{.underline}. See Popper, supra note 43,
at 32-33.

[[\[FN99\]](#Document1zzFN_B99)]{.underline}. See supra Part I.A for a
discussion of confirmation bias.

[[\[FN100\]](#Document1zzFN_B100)]{.underline}. Snyder & Swann, supra
note 33, at 1204.

[[\[FN101\]](#Document1zzFN_B101)]{.underline}. See supra notes 48-57
and accompanying text.

[[\[FN102\]](#Document1zzFN_B102)]{.underline}. Much of this attention
has come from postconviction exonerations of innocent defendants, often
in the form of DNA evidence, and even in a startling number of capital
cases. See, e.g., Jim Dwyer, Peter Neufeld & Barry Scheck, Actual
Innocence: Five Days to Execution, and Other Dispatches from the Wrongly
Convicted 262-67 (2000) (providing statistics on DNA exonerations);
Death Penalty Information Center, Innocence and the Death Penalty,
http:// www.deathpenaltyinfo.org/article.php?did=412&scid=6 (listing 123
death-row exonerations since 1973) (last visited Mar. 12, 2006).

[[\[FN103\]](#Document1zzFN_B103)]{.underline}. See Randolph N.
Jonakait, The Ethical Prosecutor\'s Misconduct, 23 Crim. L. Bull. 550,
559 (1987) (\"The natural inclination is not to see inconsistent or
contradictory evidence for what it is, but to categorize it as
irrelevant or a petty incongruity.\"); James McCloskey, Commentary,
Convicting the Innocent, 8 Crim. Just. Ethics 2, 56 (1989) (noting that
\"\[o\]nce \[the police\] come to suspect someone as the culprit \....
\[e\]vidence or information that does not fit the suspect or the
prevailing theory of the crime is dismissed as not material or is
changed to implicate the suspect\"); Medwed, supra note 8, at 140-41
(discussing prosecutorial deference to police with tunnel vision); Ellen
Yaroshefsky, [[Cooperation with Federal Prosecutors: Experiences of
Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 945
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0113727159&ReferencePosition=945)]{.underline}
(noting that prosecutors \"get wedded to their theory and things
inconsistent with their theory are ignored\" (citation omitted)).

[[\[FN104\]](#Document1zzFN_B104)]{.underline}. Comm\'n on Capital
Punishment, State of Ill., Report of the Governor\'s Commission on
Capital Punishment 19-22 (2002), available at http://
www.idoc.state.il.us/ccp/ccp/reports/commission_report/chapter_02.pdf.

[[\[FN105\]](#Document1zzFN_B105)]{.underline}. FPT Heads of
Prosecutions Comm. Working Group, Report on the Prevention of
Miscarriages of Justice 3, 34-41 (2005), available at http://
canada.justice.gc.ca/en/dept/pub/hop/PreventionOfMiscarriagesOfJustice.pdf.

[[\[FN106\]](#Document1zzFN_B106)]{.underline}. See McCloskey, supra
note 103, at 56.

[[\[FN107\]](#Document1zzFN_B107)]{.underline}. Commonly cited for this
proposition is Professor Uviller, who wrote, \"\[W\]hen the issue stands
in equipoise in his own mind, when he is honestly unable to judge where
the truth of the matter lies, I see no flaw in the conduct of the
prosecutor who fairly lays the matter before the judge or jury.\"
Uviller, supra note 28, at 1159; see also Fisher, supra note 7, at 230
n.144 (noting that the \"prevailing view, at least in the world of
practice, surely\" does not require prosecutors to have a personal
belief in the defendant\'s guilt); Zacharias, supra note 11, at 94
(asserting that \"prosecutors need not act as judges of their witness\'s
testimony unless they are sure the witness is falsifying facts\"). The
limited scope of Uviller\'s oft-quoted approval of the agnostic
prosecutor is apparent. More recently, Uviller explained, \"The
prosecutor should be assured to a fairly high degree of certainty that
he has the right person.\" H. Richard Uviller, The [[Neutral Prosecutor:
The Obligation of Dispassion in a Passionate Pursuit, 68 Fordham L. Rev.
1695, 1703
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0117387083&ReferencePosition=1703)]{.underline}
\[hereinafter Uviller, The Neutral Prosecutor\].

[[\[FN108\]](#Document1zzFN_B108)]{.underline}. See, e.g., Freedman,
supra note 29, at 219 (\"\[C\]onscientious prosecutors do not put the
destructive engine of the criminal process into motion unless they are
satisfied beyond a reasonable doubt that the accused is guilty.\");
Gershman, supra note 9, at 309 (noting from experience that it was
\"accepted ethos\" that prosecutors should not take a case to trial
unless personally convinced of the defendant\'s guilt); Green, supra
note 12, at 1588 (\"\[P\]rosecutors are expected to bring prosecutions
only when the guilt of the accused is sufficiently certain.\"); John
Kaplan, The Prosecutorial Discretion-A Comment, 60 Nw. U. L. Rev. 174,
178-79 (1965) (noting from his own experience that \"\[t\]he great
majority, if not all, of the assistants felt that it was morally wrong
to prosecute a man unless one was personally convinced of his guilt\");
Kenneth J. Melilli, [[Prosecutorial Discretion in an Adversary System,
1992 BYU L. Rev. 669,
700](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1100&FindType=Y&ReferencePositionType=S&SerialNum=0102724901&ReferencePosition=700)]{.underline}
(\"Prosecutors do not serve the interests of society by pursuing cases
where the prosecutors themselves have reasonable doubts as to the
factual guilt of the defendants.\"); Whitney North Seymour, Jr., Why
Prosecutors Act Like Prosecutors, 11 Rec. Ass\'n B. City N.Y. 302,
312-13 (1956) (noting that charging decisions are made \"only after
\[prosecutors\] have satisfied \[themselves\] of the defendant\'s actual
guilt\").

[[\[FN109\]](#Document1zzFN_B109)]{.underline}. See supra Part I.B for a
summary of selective information processing and disconfirmation bias.

[[\[FN110\]](#Document1zzFN_B110)]{.underline}. See supra Part I.B.

[[\[FN111\]](#Document1zzFN_B111)]{.underline}. See Freedman, supra note
3, at 1100-01, for a discussion of the government\'s reaction to
exculpatory evidence presented by Washington\'s defense counsel. A
released defendant\'s celebration will be commonly coupled with a
prosecutor\'s statement that the defendant has not been exonerated. See
Glod, supra note 1 (quoting Earl Washington\'s prosecutor as saying that
he \"cannot rule out\" Washington as a suspect); Sara Rimer, DNA Testing
in Rape Cases Frees Prisoner After 15 Years, N.Y. Times, Feb. 15, 2002,
at A12 (reporting that a defendant was released after fifteen years
based on exonerating DNA; prosecutor insists there is \"no reason to
doubt the validity of \[the defendant\'s\] confession\" but that \"there
is \[in\]sufficient evidence to convict him beyond a reasonable doubt,
and in this business a tie goes to the defendant\"). In at least one
case, the prosecution decided to retry the defendant after new DNA
evidence led to his release. Bruce Lambert, Prosecutor Will Retry Man
Freed by DNA in L.I. Rape-Murder, N.Y. Times, Sept. 12, 2003, at B5
(announcing prosecutor\'s decision to retry released defendant based on
his retracted confession).

[[\[FN112\]](#Document1zzFN_B112)]{.underline}. See, e.g., Medwed, supra
note 8, at 132-69 (discussing the institutional and political barriers
to prosecutorial recognition of postconviction claims of innocence).

[[\[FN113\]](#Document1zzFN_B113)]{.underline}. For a summary of the
investigation of a supposed spy ring at Guantanamo, see Nicole Guadiano,
Case Closed? Not Yet; Spy Charges Have Been Dropped in Guantanamo
Trials, but Many Questions Remain Unanswered, A.F. Times, Oct. 11, 2004,
at 22.

[[\[FN114\]](#Document1zzFN_B114)]{.underline}. 60 Minutes: Spy Ring at
Gitmo? (CBS television broadcast Nov. 24, 2004) (transcript available at
http:// www.cbsnews.com/stories/2004/11/24/60minutes/main657704.shtml).

[[\[FN115\]](#Document1zzFN_B115)]{.underline}. Id.

[[\[FN116\]](#Document1zzFN_B116)]{.underline}. Id.

[[\[FN117\]](#Document1zzFN_B117)]{.underline}. Id.

[[\[FN118\]](#Document1zzFN_B118)]{.underline}. See Guadiano, supra note
113.

[[\[FN119\]](#Document1zzFN_B119)]{.underline}. 60 Minutes: Spy Ring at
Gitmo?, supra note 114.

[[\[FN120\]](#Document1zzFN_B120)]{.underline}. Id.

[[\[FN121\]](#Document1zzFN_B121)]{.underline}. Id.

[[\[FN122\]](#Document1zzFN_B122)]{.underline}. Id.

[[\[FN123\]](#Document1zzFN_B123)]{.underline}. Id.

[[\[FN124\]](#Document1zzFN_B124)]{.underline}. Guadiano, supra note
113.

[[\[FN125\]](#Document1zzFN_B125)]{.underline}. Id.

[[\[FN126\]](#Document1zzFN_B126)]{.underline}. Id.

[[\[FN127\]](#Document1zzFN_B127)]{.underline}. See id.; Elizabeth
Mehren, Translator Pleads Guilty to Taking Documents, L.A. Times, Jan.
11, 2005, at A12 (quoting a spokesperson for the Council on
American-Islamic Relations as saying that the case against Al Halabi
\"seemed to be based more on anti-Muslim hysteria than \... on the
actual facts\"); 60 Minutes: Spy Ring at Gitmo?, supra note 114.

[[\[FN128\]](#Document1zzFN_B128)]{.underline}. An attorney for a
similarly situated defendant described the problem: \"I think the people
who are responsible at Guantanamo Bay created in their minds the notion
there was a spy ring of people who were all Muslims and they were
basically in cahoots with one another.\" 60 Minutes: Spy Ring at Gitmo?,
supra note 114 (quoting Eugene Fidell, defendant James Yee\'s attorney).

[[\[FN129\]](#Document1zzFN_B129)]{.underline}. Id.

[[\[FN130\]](#Document1zzFN_B130)]{.underline}. [[373 U.S. 83
(1963)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1963125353)]{.underline}.

[[\[FN131\]](#Document1zzFN_B131)]{.underline}. [[Id. at
87.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1963125353)]{.underline}
Although the Court recognized in Brady that prosecutorial suppression of
evidence could amount to a due process violation, it later restricted
the scope of this due process right to the discovery of evidence that
was material either to guilt or punishment. In Brady, the Court held
that a prosecutor\'s failure to disclose a cooperating witness\'s
statement, which the defense requested and which revealed that the
witness was the principal actor in the charged murder, violated due
process. Id. at 84- 87. In United States v. Agurs, the Court
distinguished specific requests for information, like the one at issue
in Brady, from vague requests for exculpatory evidence and cases in
which defense counsel made no request at all. [[427 U.S. 97, 106-07
(1976)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1976142416&ReferencePosition=106)]{.underline}.
In the latter cases, the Court held that the prosecutor\'s
constitutional obligation to disclose extended only to exculpatory
evidence that met a \"standard of materiality.\" [[Id. at
107.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1976142416)]{.underline}
Later, in [[United States v. Bagley, 473 U.S. 667, 682
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline},
the Court held that a single standard of materiality governed all cases
involving nondisclosed exculpatory evidence.

[[\[FN132\]](#Document1zzFN_B132)]{.underline}. [[466 U.S. 668
(1984)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1984123336)]{.underline}.
In Strickland, the Court held that a trial counsel\'s incompetence
warrants a new trial only if \"there is a reasonable probability that,
but for counsel\'s unprofessional errors, the result of the proceeding
would have been different.\" Id. at 694. The Strickland Court defined a
\"reasonable probability\" as \"a probability sufficient to undermine
confidence in the outcome.\" Id.

[[\[FN133\]](#Document1zzFN_B133)]{.underline}. [[Bagley, 473 U.S. at
682](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline}.

[[\[FN134\]](#Document1zzFN_B134)]{.underline}. Id.

[[\[FN135\]](#Document1zzFN_B135)]{.underline}. [[Kyles v. Whitley, 514
U.S. 419, 435
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1995091643&ReferencePosition=435)]{.underline}.

[[\[FN136\]](#Document1zzFN_B136)]{.underline}. Id.

[[\[FN137\]](#Document1zzFN_B137)]{.underline}. See Green, supra note
12, at 1592 n.101 (noting the difficulty of assessing the materiality of
evidence prospectively).

[[\[FN138\]](#Document1zzFN_B138)]{.underline}. See, e.g., Daniel J.
Capra, [[Access to Exculpatory
Evidence:](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0103109243&ReferencePosition=393)]{.underline}
[[Avoiding the Agurs Problems of Prosecutorial Discretion and
Retrospective Review, 53 Fordham L. Rev. 391, 393-97
(1984)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0103109243&ReferencePosition=393)]{.underline};
Tom Stacy, The [[Search for the Truth in Constitutional Criminal
Procedure, 91 Colum. L. Rev. 1369, 1393
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&ReferencePositionType=S&SerialNum=0298835862&ReferencePosition=1393)]{.underline}.

[[\[FN139\]](#Document1zzFN_B139)]{.underline}. Stacy, supra note 138,
at 1393.

[[\[FN140\]](#Document1zzFN_B140)]{.underline}. Capra, supra note 138,
at 394-95; Stephen A. Saltzburg, [[Perjury and False Testimony: Should
the Difference Matter So Much?, 68 Fordham. L. Rev. 1537, 1578-79
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0117387080&ReferencePosition=1578)]{.underline}
(\"In our adversary system, any limitation like \'materiality\' invites
prosecutors and their law enforcement assistants to make their own
biased judgments about materiality.\"); Stacy, supra note 138, at 1393.

[[\[FN141\]](#Document1zzFN_B141)]{.underline}. Capra, supra note 138,
at 396 n.35; Saltzburg, supra note 140, at 1579 (noting that, in most
cases, \"withheld evidence will never see the light of day,\" thereby
preventing judicial review); Stacy, supra note 138, at 1393.

[[\[FN142\]](#Document1zzFN_B142)]{.underline}. Capra, supra note 138,
at 395.

[[\[FN143\]](#Document1zzFN_B143)]{.underline}. This Article does not
attempt to tackle the difficult question of whether courts are
themselves immune to heuristics that might taint rational decision
making. For example, a number of scholars have posited that courts may
favor decisions made by their predecessors, leading to information
cascades. See generally Andrew F. Daughety & Jennifer F. Reinganum,
Stampede to Judgment: Persuasive Influence and Herding Behavior by
Courts, 1 Am. L. & Econ. Rev. 158, 159 (1999) (analyzing the
\"informational cascades\" that occur among courts \"when their
decisions are decreasingly determined by their own information and
increasingly determined by the actions of others\"); Eric Talley,
[[Precedential Cascades: An Appraisal, 73 S. Cal. L. Rev. 87, 192
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1228&FindType=Y&SerialNum=0113799772)]{.underline}
(evaluating \"whether a cascade theory of precedent represents a cogent
description of legal evolution, focusing principally on information
cascades\"). Reviewing courts may thus also be subject to a bias in
favor of what prior courts have already done.

[[\[FN144\]](#Document1zzFN_B144)]{.underline}. [[United States v.
Bagley, 473 U.S. 667, 682
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline};
[[Brady v. Maryland, 373 U.S. 83, 87-88
(1963)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1963125353&ReferencePosition=87)]{.underline}.

[[\[FN145\]](#Document1zzFN_B145)]{.underline}. See supra notes 53-57
and accompanying text for a discussion of confirmation bias\'s effect on
recall.

[[\[FN146\]](#Document1zzFN_B146)]{.underline}. See supra Part I.B for a
summary of selective information processing.

[[\[FN147\]](#Document1zzFN_B147)]{.underline}. See supra notes 135-39
and accompanying text.

[[\[FN148\]](#Document1zzFN_B148)]{.underline}. See supra notes 66-69
and accompanying text for a discussion of people\'s tendency to
scrutinize information that is dissonant with existing theories.

[[\[FN149\]](#Document1zzFN_B149)]{.underline}. Green, supra note 11, at
637-42; Uviller, The Neutral Prosecutor, supra note 107, at 1704-05
(arguing that prosecutors have an obligation to investigate any \"firmly
based charge\" that an innocent defendant has been convicted and, if the
claim is substantiated, \"to urge immediate remedy to assist the court
in righting the wrong\").

[[\[FN150\]](#Document1zzFN_B150)]{.underline}. See generally [[Young v.
United States, 315 U.S. 257, 258
(1942)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1942123212&ReferencePosition=258)]{.underline}
( \"The public trust reposed in the law enforcement officers of the
Government requires that they be quick to confess error when, in their
opinion, a miscarriage of justice may result from their remaining
silent.\").

[[\[FN151\]](#Document1zzFN_B151)]{.underline}. See supra Part I.A for a
discussion of selective information processing.

[[\[FN152\]](#Document1zzFN_B152)]{.underline}. See supra notes 83-86
and accompanying text for a discussion of how belief perseverance can
affect a prosecutor\'s evaluation of potentially exculpatory evidence.

[[\[FN153\]](#Document1zzFN_B153)]{.underline}. See supra Part II.B for
a discussion of postconviction belief perseverance.

[[\[FN154\]](#Document1zzFN_B154)]{.underline}. See supra note 108 for
citations to the many scholars who have concluded that an ethical
prosecutor does not bring charges unless she personally believes that
the defendant is guilty.

[[\[FN155\]](#Document1zzFN_B155)]{.underline}. See Roberta K. Flowers,
[[What You See Is What You Get: Applying the Appearance of Impropriety
Standard to Prosecutors, 63 Mo. L. Rev. 699, 734
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1196&FindType=Y&ReferencePositionType=S&SerialNum=0110064134&ReferencePosition=734)]{.underline};
Bennett L. Gershman, [[Mental Culpability and Prosecutorial Misconduct,
26 Am. J. Crim. L. 121, 133-35
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1434&FindType=Y&ReferencePositionType=S&SerialNum=0112638647&ReferencePosition=133)]{.underline};
Peter J. Henning, [[Prosecutorial Misconduct in Grand Jury
Investigations, 51 S.C. L. Rev. 1, 14-20
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1227&FindType=Y&ReferencePositionType=S&SerialNum=0115527585&ReferencePosition=14)]{.underline};
Andrew M. Hetherington, [[Prosecutorial Misconduct, 90 Geo. L.J. 1679
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1146&FindType=Y&SerialNum=0289631526)]{.underline};
Medwed, supra note 8, at 174.

[[\[FN156\]](#Document1zzFN_B156)]{.underline}. Another model of reform
is the limitation of prosecutorial discretion. See, e.g., Davis, supra
note 97, at 460-64; Robert Heller, Comment, [[Selective Prosecution and
the Federalization of Criminal Law: The Need for Meaningful Judicial
Review of Prosecutorial Discretion, 145 U. Pa. L. Rev. 1309, 1325-28
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0108033998&ReferencePosition=1325)]{.underline}.
The judiciary is typically loathe to intrude upon the broad discretion
of prosecutors, in part out of respect for the separation of powers. See
[[United States v. Armstrong, 517 U.S. 456, 464
(1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1996113140&ReferencePosition=464)]{.underline}
(invoking separation of powers concerns in setting a high standard for
scrutinizing the charging decisions of federal prosecutors). For
purposes of this Article, the lessons of cognitive psychology are used
to suggest methods of improving the quality of decisions made within the
scope of a prosecutor\'s discretion, but the proper breadth of that
discretionary authority is not addressed.

[[\[FN157\]](#Document1zzFN_B157)]{.underline}. See supra notes 12-16
and accompanying text.

[[\[FN158\]](#Document1zzFN_B158)]{.underline}. See supra Part I.A-C for
a summary of confirmation bias, selective information processing, and
belief perseverance.

[[\[FN159\]](#Document1zzFN_B159)]{.underline}. See supra Part II.A.

[[\[FN160\]](#Document1zzFN_B160)]{.underline}. The prosecutor\'s
participation during investigations is a relatively recent but
increasingly common role. See Rory K. Little, [[Proportionality as an
Ethical Precept for Prosecutors in Their Investigative Role, 68 Fordham
L. Rev. 723, 733-36
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0113727140&ReferencePosition=733)]{.underline}
(discussing the twentieth-century development of the prosecutorial role
in investigations).

[[\[FN161\]](#Document1zzFN_B161)]{.underline}. Of course, full
disclosure from police to prosecutors does not resolve flaws that exist
in the investigation stage, such as the investigating officers\' tunnel
vision and other cognitive biases. See, e.g., McCloskey, supra note 103,
at 56. That is why recent reform suggestions in the context of wrongful
convictions have included training police officers to continue to
investigate all alternative theories. See, e.g., Comm\'n on Capital
Punishment, supra note 104, at 20-21. Moreover, even if flaws exist in
the police investigation, full disclosure by police officers to
prosecutors, coupled with enhanced disclosure duties of prosecutors to
defense attorneys, see infra Part III, would likely increase the
probability that those flaws might be detected prior to conviction.

[[\[FN162\]](#Document1zzFN_B162)]{.underline}. The State of Illinois
Commission on Capital Punishment recently attempted to resolve this
problem in the context of preserving the integrity of capital offense
investigations. See Comm\'n on Capital Punishment, supra note 104, at
22.

[[\[FN163\]](#Document1zzFN_B163)]{.underline}. See [[United States v.
Bagley, 473 U.S. 667, 682
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline};
[[Brady v. Maryland, 373 U.S. 83, 87
(1963)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1963125353&ReferencePosition=87)]{.underline}.

[[\[FN164\]](#Document1zzFN_B164)]{.underline}. [[Kyles v. Whitley, 514
U.S. 419, 437
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1995091643&ReferencePosition=437)]{.underline}.

[[\[FN165\]](#Document1zzFN_B165)]{.underline}. See Stanley Z. Fisher,
The [[Prosecutor\'s Ethical Duty To Seek Exculpatory Evidence in Police
Hands: Lessons from England, 68 Fordham L. Rev. 1379, 1385
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0117387076&ReferencePosition=1385)]{.underline};
see also Lissa Griffin, The [[Correction of Wrongful Convictions: A
Comparative Perspective, 16 Am. U. Int\'l L. Rev. 1241, 1251-55
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=115964&FindType=Y&ReferencePositionType=S&SerialNum=0284177638&ReferencePosition=1251)]{.underline}
(comparing the Brady regime to the English requirement that police
record and disclose to prosecutors all relevant information).

[[\[FN166\]](#Document1zzFN_B166)]{.underline}. See supra Part II.A.

[[\[FN167\]](#Document1zzFN_B167)]{.underline}. See, e.g., Ellen S.
Podgor, The [[Ethics and Professionalism of Prosecutors in Discretionary
Decisions, 68 Fordham L. Rev. 1511, 1513
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0117387079&ReferencePosition=1513)]{.underline}.

[[\[FN168\]](#Document1zzFN_B168)]{.underline}. Gershman, supra note 9,
at 342, 348.

[[\[FN169\]](#Document1zzFN_B169)]{.underline}. See Joseph W. Rand,
[[Understanding Why Good Lawyers Go Bad:
Using](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=106706&FindType=Y&ReferencePositionType=S&SerialNum=0294213482&ReferencePosition=734)]{.underline}
[[Case Studies in Teaching Cognitive Bias in Legal Decision-Making, 9
Clinical L. Rev. 731, 734
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=106706&FindType=Y&ReferencePositionType=S&SerialNum=0294213482&ReferencePosition=734)]{.underline}
(illustrating the use of case studies in clinical education to teach
students about cognitive bias).

[[\[FN170\]](#Document1zzFN_B170)]{.underline}. Comm\'n on Capital
Punishment, supra note 104, at 111 (suggesting that all prosecutors and
defense lawyers who try capital cases should receive periodic training
on the dangers of tunnel vision or confirmation bias, and other factors
contributing to wrongful convictions); FPT Heads of Prosecutions Comm.
Working Group, supra note 105, at 40-41 (recommending educating
prosecutors about tunnel vision).

[[\[FN171\]](#Document1zzFN_B171)]{.underline}. See Nisbett & Ross,
supra note 16, at 191 (\"The effectiveness of a variety of procedures
for discrediting information also may depend on their capacity to make
subjects aware of some of the processes underlying the perseverance of
their beliefs.\").

[[\[FN172\]](#Document1zzFN_B172)]{.underline}. See Ross, Lepper &
Hubbard, supra note 76, at 880-87.

[[\[FN173\]](#Document1zzFN_B173)]{.underline}. Id. at 885.

[[\[FN174\]](#Document1zzFN_B174)]{.underline}. Id. at 887-88.

[[\[FN175\]](#Document1zzFN_B175)]{.underline}. Id. at 888.

[[\[FN176\]](#Document1zzFN_B176)]{.underline}. Id.

[[\[FN177\]](#Document1zzFN_B177)]{.underline}. See Wason &
Johnson-Laird, supra note 38, at 194-97 (summarizing evidence
demonstrating the difficulty subjects had with the card-selection task
even when fully informed about the correct response).

[[\[FN178\]](#Document1zzFN_B178)]{.underline}. See Anderson, Lepper &
Ross, supra note 84, at 1039. The study is summarized in notes 183-86
infra and accompanying text.

[[\[FN179\]](#Document1zzFN_B179)]{.underline}. Anderson, Lepper & Ross,
supra note 84, at 1045.

[[\[FN180\]](#Document1zzFN_B180)]{.underline}. Id. at 1039.

[[\[FN181\]](#Document1zzFN_B181)]{.underline}. Id. at 1045; see also
Anderson et al., supra note 65, at 244-48 (finding that subjects who
produced causal arguments to support their beliefs were more likely to
show a perseverance of belief after the presentation of evidence that
explicitly disconfirmed their initial beliefs); Lee Ross et al., Social
Explanation and Social Expectation: Effects of Real and Hypothetical
Explanations on Subjective Likelihood, 35 J. Personality & Soc. Psychol.
817, 825-26 (1977) (finding that subjects who generated an explanation
for purely hypothetical data demonstrated greater belief perseverance
than subjects who had not generated an explanation).

[[\[FN182\]](#Document1zzFN_B182)]{.underline}. Anderson, Lepper & Ross,
supra note 84, at 1047; see also Nisbett & Ross, supra note 16, at
183-86 (attributing belief perseverance to misplaced adherence to causal
explanations); Craig A. Anderson, Inoculation and Counterexplanation:
Debiasing Techniques in the Perseverance of Social Theories, 1 Soc.
Cognition 126, 128 (1982) \[hereinafter Anderson, Inoculation\]
(suggesting a possible mechanism for the perseverance enhancing effect
of explanation). Some have suggested that confirmation bias and the
availability heuristic may play a role in the mechanism for belief
perseverance. If people search their memories for confirming evidence to
support a theory while they are forming it, that retrieved information
remains available and therefore influential to decision making, even
after the initial evidence that led to the theory is undermined. See
Kunda, supra note 16, at 100 (suggesting a link between belief
perseverance and the availability heuristic).

[[\[FN183\]](#Document1zzFN_B183)]{.underline}. See Nisbett & Ross,
supra note 16, at 190 (\"It seems probable that attempts to discredit
beliefs may have relatively greater impact when they prompt the use of
plausible theories or \'scripts\' that encompass both the initial
information and the subsequent challenge to that information.\").

[[\[FN184\]](#Document1zzFN_B184)]{.underline}. Craig A. Anderson &
Elizabeth S. Sechler, Effects of Explanation and Counterexplanation on
the Development and Use of Social Theories, 50 J. Personality & Soc.
Psychol. 24, 27-28 (1986).

[[\[FN185\]](#Document1zzFN_B185)]{.underline}. Id. at 29.

[[\[FN186\]](#Document1zzFN_B186)]{.underline}. Lord, Lepper & Preston,
supra note 65, at 1239. The researchers found that both strategies for
inducing subjects to consider the opposite had greater corrective
effects than instructions for subjects to be fair and unbiased. Id.

[[\[FN187\]](#Document1zzFN_B187)]{.underline}. These examples are based
upon psychologist Craig Anderson\'s examples of how
perseverance-reducing procedures can be used generally. See Anderson,
Inoculation, supra note 182, at 129.

[[\[FN188\]](#Document1zzFN_B188)]{.underline}. The establishment of
internal \"fresh look\" procedures would resemble committees formed in
some district attorneys\' offices to review cases resting upon the
testimony of a single eyewitness. See Medwed, supra note 8, at 127 &
n.6; Robin Topping, Panel Puts Justice Before Prosecution, Newsday, Jan.
8, 2003, at A21 (describing such a committee in Nassau County, New
York).

[[\[FN189\]](#Document1zzFN_B189)]{.underline}. See supra Part II.A for
a discussion of how a prosecutor\'s initial charging decision may cause
her to underestimate the exculpatory value of subsequently discovered
evidence.

[[\[FN190\]](#Document1zzFN_B190)]{.underline}. See supra Part II.B for
a discussion of how belief perseverance can cause a prosecutor to adhere
to her theory of guilt even after critical evidence against the
defendant is undermined.

[[\[FN191\]](#Document1zzFN_B191)]{.underline}. See supra Part II.D for
a discussion of how the avoidance of cognitive dissonance can prevent
prosecutors from acknowledging that they have charged or convicted an
innocent person of a crime.

[[\[FN192\]](#Document1zzFN_B192)]{.underline}. Herbert L. Packer, The
Limits of the Criminal Sanction 160 (1968) ( \"The presumption of guilt
is what makes it possible for the system to deal efficiently with large
numbers, as the Crime Control Model demands.\").

[[\[FN193\]](#Document1zzFN_B193)]{.underline}. See George T. Felkenes,
The Prosecutor: A Look at Reality, 7 Sw. U. L. Rev. 98, 112 (1975)
(describing the phenomenon of \"pre-conviction\" as the tendency of
prosecutors to presume the guilt of the accused).

[[\[FN194\]](#Document1zzFN_B194)]{.underline}. See, e.g., Leonard
Berkowitz & Nigel Walker, Laws and Moral Judgments, 30 Sociometry 410,
418 (1967) (finding that subjects\' approval of conduct conformed to
their peers\' opinions).

[[\[FN195\]](#Document1zzFN_B195)]{.underline}. Specifically, subjects
were asked to choose which of three lines was the same length as a
comparison line. See Solomon E. Asch, Social Psychology 450-59 (1952)
\[hereinafter Asch, Social Psychology\]; Solomon E. Asch, Studies of
Independence and Conformity: A Minority of One Against a Unanimous
Majority, 70 Psychol. Monographs 1 (1956); see also Richard S.
Crutchfield, Conformity and Character, 10 Am. Psychologist 191, 196
(1955) (replicating Asch\'s study with female subjects).

[[\[FN196\]](#Document1zzFN_B196)]{.underline}. Asch demonstrated the
power of a lone dissenting voice in his line-matching studies. When
experimenters varied the research design to include one accurate
confederate among the inaccurate peers, subjects deviated from majority
opinion and chose the correct line. Asch, Social Psychology, supra note
195, at 477-79; see also Cass R. Sunstein, Why Societies Need Dissent 21
(2003) (noting that the lone person with knowledge of the truth may not
want to risk her reputation by insisting that she is correct).

[[\[FN197\]](#Document1zzFN_B197)]{.underline}. See Nisbett & Ross,
supra note 16, at 291 (suggesting that collective and institutional
judgments are most capable of improvement because of the potential to
formalize decision-making procedures to account for cognitive barriers
to effective evaluations).

[[\[FN198\]](#Document1zzFN_B198)]{.underline}. Professor Freedman has
suggested a similar process in which a panel acting like a grand jury
would review postconviction innocence claims in capital cases. See Eric
M. Freedman, Innocence, Federalism, and the Capital Jury: Two
Legislative Proposals for Evaluating Post-Trial Evidence of Innocence in
Death Penalty Cases, 18 N.Y.U. Rev. L. & Soc. Change 315, 322-23 (1990).

[[\[FN199\]](#Document1zzFN_B199)]{.underline}. The judiciary has
typically deferred to prosecutorial discretion, reasoning that its
exercise calls for decisions that the judiciary is ill-equipped to make.
These include decisions about law enforcement priorities, the
appropriateness of a single prosecution as a part of those priorities,
the allocation of prosecutorial resources, and the individualization of
justice in a single case. See [[Town of Newton v. Rumery, 480 U.S. 386,
396
(1987)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1987029485&ReferencePosition=396)]{.underline}
(noting that the prosecutor, not the judiciary, must evaluate the merits
of the case, allocation of resources, and enforcement objectives);
[[Wayte v. United States, 470 U.S. 598, 607
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985114057&ReferencePosition=607)]{.underline}
(\"Such factors as the strength of the case, the prosecution\'s general
deterrence value, the Government\'s enforcement priorities, and the
case\'s relationship to the Government\'s overall enforcement plan are
not readily susceptible to the kind of analysis the courts are competent
to undertake.\").

[[\[FN200\]](#Document1zzFN_B200)]{.underline}. See generally David H.
Bayley, Community Policing: A Report from the Devil\'s Advocate, in
Community Policing: Rhetoric or Reality 225, 236-37 (Jack R. Greene &
Stephen D. Mastrofski eds., 1988) (arguing that external monitoring of
police is an essential component of implementing community policing);
Debra Livingston, [[Police Discretion and the Quality of Life in Public
Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev.
551, 575-78
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&ReferencePositionType=S&SerialNum=0107841748&ReferencePosition=575)]{.underline}
(discussing the increase in the use of civilian oversight boards in the
policing context).

[[\[FN201\]](#Document1zzFN_B201)]{.underline}. Livingston, supra note
200, at 665.

[[\[FN202\]](#Document1zzFN_B202)]{.underline}. Id. at 664-66.

[[\[FN203\]](#Document1zzFN_B203)]{.underline}. Professor Davis has
advocated the creation of prosecution review boards to review complaints
against prosecutors and their discretionary decisions. Davis, supra note
97, at 463-64. This Article\'s proposal differs by recommending the
participation of outsiders to improve the quality of prosecutorial
decisions as they are being made.

[[\[FN204\]](#Document1zzFN_B204)]{.underline}. See, e.g., The Effect of
State Ethics Rules on Federal Law Enforcement: Hearing Before the
Subcomm. on Criminal Justice Oversight of the S. Comm. on the Judiciary,
106th Cong. 53 (1999) (statement of John Smietanka, former prosecutor)
(testifying that \"\[t\]ime, money and, to some unfortunate extent, a
cultural chasm\" prevent prosecutors from \"meaningful participation\"
in bar activities); cf. Lisa G. Lerman, [[Public Service by Public
Servants, 19 Hofstra L. Rev. 1141
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1160&FindType=Y&SerialNum=0101354466)]{.underline}
(noting obstacles that prevent government lawyers from undertaking pro
bono work).

[[\[FN205\]](#Document1zzFN_B205)]{.underline}. See supra Part II.D.

[[\[FN206\]](#Document1zzFN_B206)]{.underline}. Claude M. Steele, The
Psychology of Self-Affirmation: Sustaining the Integrity of the Self, in
21 Advances in Experimental Social Psychology.261, 277 (Leonard
Berkowitz ed., 1988).

[[\[FN207\]](#Document1zzFN_B207)]{.underline}. Id. at 278.

[[\[FN208\]](#Document1zzFN_B208)]{.underline}. Id.

[[\[FN209\]](#Document1zzFN_B209)]{.underline}. Claude M. Steele &
Thomas J. Liu, Dissonance Processes as Self-Affirmation, 45 J.
Personality & Soc. Psychol. 5, 7-8 (1983).

[[\[FN210\]](#Document1zzFN_B210)]{.underline}. Id.

[[\[FN211\]](#Document1zzFN_B211)]{.underline}. Id.

[[\[FN212\]](#Document1zzFN_B212)]{.underline}. Id.

[[\[FN213\]](#Document1zzFN_B213)]{.underline}. Id.

[[\[FN214\]](#Document1zzFN_B214)]{.underline}. Claude M. Steele &
Thomas J. Liu, Making the Dissonant Act Unreflective of Self: Dissonance
Avoidance and the Expectancy of a Value-Affirming Response, 7
Personality & Soc. Psychol. Bull. 393, 396-97 (1981). Subjects
demonstrated reduced attitude change as a result of writing the essay if
they were led to believe that they would provide study assistance for
blind students after the experiment. Id. at 393.

[[\[FN215\]](#Document1zzFN_B215)]{.underline}. See Part II.C, supra,
for a discussion of [[Brady v. Maryland, 373 U.S. 83
(1963)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1963125353)]{.underline},
and the potential of cognitive bias to affect its application.

[[\[FN216\]](#Document1zzFN_B216)]{.underline}. [[United States v.
Bagley, 473 U.S. 667, 682
(1985)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline}.

[[\[FN217\]](#Document1zzFN_B217)]{.underline}. See supra Part II.C.

[[\[FN218\]](#Document1zzFN_B218)]{.underline}. [[466 U.S. 668
(1984)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1984123336)]{.underline}.
In Strickland, the Court held that the demonstration of trial counsel\'s
incompetence warrants a new trial only if \"there is a reasonable
probability that, but for counsel\'s unprofessional errors, the result
of the proceeding would have been different.\" Id. at 694. The
Strickland Court defined a \"reasonable probability\" as \"a probability
sufficient to undermine confidence in the outcome.\" Id.

[[\[FN219\]](#Document1zzFN_B219)]{.underline}. See [[Bagley, 473 U.S.
at
682](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1985133735&ReferencePosition=682)]{.underline}
(relying on [[Strickland, 466 U.S. at
694-95,](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1984123336&ReferencePosition=694)]{.underline}
in defining the \"materiality\" of evidence subject to disclosure).

[[\[FN220\]](#Document1zzFN_B220)]{.underline}. [[Strickland, 466 U.S.
at
687](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1984123336&ReferencePosition=687)]{.underline}.

[[\[FN221\]](#Document1zzFN_B221)]{.underline}. Id. Trial counsel\'s
performance is measured by an objective standard and is reasonably
effective if her services fall within the range of competence demanded
in a criminal case. Id. at 687-88.

[[\[FN222\]](#Document1zzFN_B222)]{.underline}. Id. at 694.

[[\[FN223\]](#Document1zzFN_B223)]{.underline}. Strickland does permit a
court reviewing trial counsel\'s performance after the fact to apply the
second prong first, thereby avoiding any ruling on the attorney\'s
performance by ruling instead that any proven incompetence would have
been harmless. Id. at 697. Accordingly, Strickland does permit attorney
incompetence to go unaddressed absent separate civil or disciplinary
proceedings against counsel. Nevertheless, as a decision providing
prospective guidance to defense counsel, Strickland does make clear that
the standard for attorney performance is reasonably effective
assistance. Id. at 687.

[[\[FN224\]](#Document1zzFN_B224)]{.underline}. [[Brady v. Maryland, 373
U.S. 83, 87
(1963)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1963125353&ReferencePosition=87)]{.underline}.

[[\[FN225\]](#Document1zzFN_B225)]{.underline}. Capra, supra note 138,
at 428.

[[\[FN226\]](#Document1zzFN_B226)]{.underline}. Model Rules of Prof\'l
Conduct R. 3.8(d) (1998). With respect to sentencing, the rule goes on
to require disclosure to the defense and the court of \"all unprivileged
mitigating information known to the prosecutor \....\" Id.

[[\[FN227\]](#Document1zzFN_B227)]{.underline}. See Gershman, supra note
9, at 328 (noting that prosecutors\' constitutional obligations are
narrower than their ethical obligations under Rule 3.8(d)); Lisa M.
Kurcias, Note, [[Prosecutor\'s Duty To Disclose Exculpatory Evidence, 69
Fordham L. Rev. 1205, 1205-06, 1216
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1142&FindType=Y&ReferencePositionType=S&SerialNum=0283042562&ReferencePosition=1205)]{.underline}
(discussing the difference between prosecutors\' obligations under Brady
and Model Rule 3.8(d)).

[[\[FN228\]](#Document1zzFN_B228)]{.underline}. See Melilli, supra note
108, at 686 (explaining that young lawyers entering into service as
prosecutors are inexperienced and given little or no education in
prosecutorial ethics).

[[\[FN229\]](#Document1zzFN_B229)]{.underline}. See John M. Burkoff,
[[Prosecutorial Ethics: The Duty Not \"To Strike Foul Blows,\" 53 U.
Pitt. L. Rev. 271, 274-75
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0101944357&ReferencePosition=274)]{.underline}
(noting that prosecutors\' groups and especially the Department of
Justice have been critical of the American Bar Association\'s attempts
to regulate the unethical conduct of prosecutors).

[[\[FN230\]](#Document1zzFN_B230)]{.underline}. See Zacharias, supra
note 13, at 761 (noting that bar authorities often operate under the
power of the judiciary and may be reluctant to discipline prosecutors
because of concerns about the separation of powers). When Richard
Thornburgh was Attorney General, for example, he accused \"\[t\]he
defense bar, with ABA sponsorship, \[of\] attempting to use rules of
professional conduct to stymie criminal investigations and
prosecutions.\" Press Release, U.S. Dep\'t of Justice, National
Association of Attorneys General, and National District Attorneys
Association (Aug. 6, 1991). He argued that the enforcement of ethical
rules against prosecutors amounted to

an undisguised effort by the defense bar to undo what both Congress and
the Supreme Court have declared to be the law \.... We find it curious
and inappropriate that the ABA, in which the interests of the defense
bar are well-represented, should be in the business of making rules for
the government\'s conduct of criminal prosecutions, particularly in
areas where the courts and legislatures have already acted. This is the
business of Congress and the courts.

Id.

[[\[FN231\]](#Document1zzFN_B231)]{.underline}. See Richard A. Rosen,
[[Disciplinary Sanctions Against Prosecutors for Brady Violations: A
Paper Tiger, 65 N.C. L. Rev. 693, 697
(1987)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1199&FindType=Y&ReferencePositionType=S&SerialNum=0101759925&ReferencePosition=697)]{.underline};
Joseph R. Weeks, [[No Wrong Without a Remedy: The Effective Enforcement
of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 Okla.
City U. L. Rev. 833, 898
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1217&FindType=Y&ReferencePositionType=S&SerialNum=0109620228&ReferencePosition=898)]{.underline}
(\"\[T\]he disciplinary process has been almost totally ineffective in
sanctioning even egregious Brady violations.\"); Zacharias, supra note
13, at 755.

[[\[FN232\]](#Document1zzFN_B232)]{.underline}. See Green, supra note
12, at 1593 (reporting that \"courts and disciplinary authorities do not
sanction prosecutors for failing to disclose evidence as required by the
rule but not by other law\").

[[\[FN233\]](#Document1zzFN_B233)]{.underline}. Capra, supra note 138,
at 426-30.

[[\[FN234\]](#Document1zzFN_B234)]{.underline}. James S. Liebman, The
[[Overproduction of Death, 100 Colum. L. Rev. 2030, 2145-56
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3050&FindType=Y&SerialNum=0282238870)]{.underline}
(calling for open file access in capital cases); Jenny Roberts, [[Too
Little, Too Late: Ineffective Assistance of Counsel, the Duty to
Investigate, and Pretrial Discovery in Criminal Cases, 31 Fordham Urb.
L.J. 1097, 1153-54
(2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1143&FindType=Y&ReferencePositionType=S&SerialNum=0302772241&ReferencePosition=1153)]{.underline}
(arguing in favor of open file discovery as a prophylactic rule to
protect Brady rights); Victor Bass, Comment, Brady v. Maryland and the
Prosecutor\'s Duty to Disclose, 40 U. Chi. L. Rev. 112, 113 (1972)
(\"\[T\]he prosecutor\'s entire file should, except in special cases, be
open to defense inspection.\"). But see John G. Douglass, [[Fatal
Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory
L.J. 437, 460-61
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1135&FindType=Y&ReferencePositionType=S&SerialNum=0284250520&ReferencePosition=460)]{.underline}
(arguing that open file and other informal discovery processes have
shortcomings); Steven Alan Reiss, [[Prosecutorial Intent in
Constitutional Criminal Procedure, 135 U. Pa. L. Rev. 1365, 1462-64
(1987)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&SerialNum=0102729869)]{.underline}
(arguing that open file policies deter prosecutors from seeking out
additional information that might benefit the defendant).

[[\[FN235\]](#Document1zzFN_B235)]{.underline}. See supra text
accompanying notes 1-10 for a discussion of the Earl Washington case.

[[\[FN236\]](#Document1zzFN_B236)]{.underline}. See supra notes 188-95
and accompanying text for a discussion of the power to improve the
exercise of prosecutorial discretion through review committees within
district attorneys\' offices.

[[\[FN237\]](#Document1zzFN_B237)]{.underline}. Many have suggested that
internal guidelines may be one of the most effective methods of
improving the exercise of prosecutorial discretion. See, e.g., Norman
Abrams, Internal Policy: Guiding the Exercise of Prosecutorial
Discretion, 19 UCLA L. Rev. 1, 57 (1971); James Vorenberg, [[Decent
Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1562
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0110409621&ReferencePosition=1562)]{.underline}.

END OF DOCUMENT