A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making

I. Introduction II. The Prosecutor's Conflicting Roles A. The Dangers of Overzealous Advocacy B. Why the Duty to Advocate Can Trump Justice Obligations C. An Illustration: The Central Park Jogger Case III. Psychological Implications of Systems of Accountability A. Psychological Research on the Effects of Accountability B. Features of the Prosecutor's Job as a System of Accountability IV. Empirical Evidence of the Effects of Accountability on Legal Decision Making A. Procedures and Materials B. Measures 1. Study 1 a. Methods and Participants b. Results 2. Study 2 a. Methods and Participants b. Results C. Discussion and Limitations of These Studies: Do These Findings Generalize to Prosecutors? V. Implications for Reform A. Discovery Obligations and Dilemmas B. Cooperating Witnesses and the Risk of Perjury C. Investigatory Decision Making and Tunnel Vision VI. Conclusion APPENDIX Table 1 Table 2 I. INTRODUCTION Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. (2) They must prosecute offenders and do so with vigor. At the same time, they must serve as ministers of justice charged with considering the interests of the very defendants they prosecute. (3) In this Article, I argue that these "dual roles" (4) place demands on prosecutors that are untenable from a psychological perspective. Specifically, I apply the lessons of cognitive science to offer a comprehensive approach to identifying the ways in which prosecutors' distinctive institutional environment may undermine not just their willingness to play fair but also their ability to do so. This approach bridges prevailing schools of thought about the misuse of prosecutorial power, allowing for more nuanced predictions as to when prosecutors are most likely to transgress. Striking the proper balance between advocacy and justice obligations can be difficult, and prosecutors sometimes fall short. (5) In Part II, I discuss the problems that arise when a prosecutor's duty to advocate conflicts with the duty to serve justice and review the prevailing explanations for why advocacy goals sometimes triumph in these situations. In studying instances where prosecutors fail to honor their dual and arguably divergent obligations, many scholars focus on institutional incentives that foster misconduct. (6) These scholars lament an incentive structure that encourages prosecutors to seek convictions at all costs as well as the lack of effective sanctions to deter misconduct. (7) This approach implicitly treats the prosecutor as a rational actor who bases the decision to comply with a rule on an economic assessment of the expected costs and benefits of doing so. A second school of thought focuses on bounded human rationality. Cognitive science teaches that human beings share certain cognitive tendencies that cause them to deviate in systematic and predictable ways from purely rational information processing and decision making. (8) Scholars in this school draw on these teachings to argue that prosecutors fail to honor their multiple obligations not for sinister and calculating motives but because they labor under the same self-serving biases (9) and limitations that all humans do. (10) In Part III, I seek to synthesize the insights of both camps into one comprehensive view. Thus, I apply what cognitive research tells us about the general limits of human cognition to the prosecutor's unique institutional environment. To that end, I focus on accountability as an institutional feature with implications for prosecutorial decision making. I review the substantial body of psychological research exploring the ways in which different systems of accountability affect people's ability to process information in a thorough and evenhanded way. (12) This research generates testable predictions about how specific features of the criminal justice system can undermine prosecutors' objectivity. …