Hard Lessons: The Role of Law Schools in Addressing Prosecutorial Misconduct

Abstract

This Article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect. Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense attorneys serves three important goals. First, such instruction can act as preventative medicine by reducing the likelihood that future prosecutors will step over the line out of ignorance of the applicable case law and court rules or out of a misplaced desire to win at all costs. Second, it enables future defense counsel to develop litigation methods designed to prevent the problem from occurring in the first instance. Third, it can prepare defense counsel to recognize prosecutorial misconduct that proves unpreventable so that she is able to respond effectively in-the-moment rather than belatedly, after the harm has been done. The blended learning approach that is the signature pedagogy of the clinical classroom is well-suited to addressing prosecutorial misconduct because it provides an opportunity for students to engage in a frank and thoughtful dissection of the legal and ethical issues that are inextricably bound up with it. The model I propose combines instruction in black letter law, ethics, and skills acquisition. It also seeks to have clinicians model the process of analyzing and responding to prosecutorial misconduct using examples from their real world experiences. With this approach, students will learn to think critically about their roles and responsibilities as future prosecutors and defense attorneys and to develop sound professional judgment before they enter the whirlwind of practice.