Model Ethical Standards for Prosecutors Facing Post- Conviction Claims of Innocence David M. Siegel & Judith Goldberg

Why Model Ethical Standards Are Needed ► Rights to testing by statutes or court rules will still be implemented in an adversarial context, with procedural requirements. ► Defendants will always be the initial proponents of new science, and will always bear the burden of the presumed validity of their convictions.

Overview of Model Ethical Standards ► When Faced with a Defendant’s Post- Conviction Claim of Innocence Requesting the Application of New Science, the Prosecutor Shall:  Promptly Seek the Fullest Accounting of Truth  Effect the Fullest Disclosure Possible  Use the Most Accurate Science

Goals of these Standards ► Acceptability to All Members of the C/J System ► Perception as Fair and Reasonable by All Members of C/J System and by Lay Persons ► Recognition as Desirable by Prosecutors

Applicability of these Standards ► Post-Conviction  “Ordinary” ethical standards already apply through direct appeal ► Claims of Actual or Factual Innocence  Actual – legally insufficient evidence of guilt  Factual – demonstrable proof of innocence ► Seeking Use of “New” Science  Newly available or newly admissible

Counterarguments to Model Standards - I ► Prosecutor’s Obligation to Promptly Seek the Fullest Accounting of Truth  The final, valid conviction is the truth. ► Finality based upon factually inaccurate premise is not genuine finality.  That’s not the Prosecutor’s job. ► The Prosecutor’s job is seeking justice rather than simply convictions.  The Defendant should submit these claims to the adversarial process for a determination of truth.

Counterarguments to Model Standards - II ► Prosecutor’s Obligation to Effect Fullest Disclosure Possible  This would require permanent retention of all evidence and files in all cases. ► These are essential Procedural Issues.  Who has obligation to maintain evidence and files?  Where should evidence and files be maintained?  Who can have access to evidence and files?  How long must evidence and files be maintained?  Liability for failure to maintain files and evidence?

Counterarguments to Model Standards - III  Prosecutor’s Obligation to Use Most Accurate Science ► Do we sacrifice legal finality on the altar of scientific advancement?  Finality based upon scientifically demonstrably factually inaccurate premise is not genuine finality. ► What is “most accurate” as science constantly evolves?  At a minimum, most accurate science means that which prosecutors use in current cases.  At a maximum, most accurate science means that which is admissible by highest court in jurisdiction.

Model Ethical Standards Would Proactively Address Procedural Issues ► Chain of Custody –  The “next defendant” or “real perpetrator” argument  The “Foreign Lab” argument (i.e., one in a foreign jurisdiction, e.g., California)  The “How do we know the defense didn’t tamper with it“ argument ► Authentication  The “next defendant” or “real perpetrator” argument  The “If it can’t be authenticated first as it would be at trial, it will never be admitted, so it’s not relevant” argument ► Statutes of Limitations / Time bars ► Cost / Funding  The “It will be cheaper if our lab does it” argument ► Prevent Stalling  The “We just need more time to ensure we know what evidence there is” argument ► Disclosure  The “ongoing investigation” argument

Why Prosecutors Benefit from Model Ethical Standards ► Quid Pro Quo ► Full Disclosure of Expert’s Analysis as a Matter of Right ► Resource Conservation by avoiding protracted litigation ► Increased Public Confidence in Reliability of C/J System ► Increased Clarity of Prosecutor’s Obligations ► Reduced Opportunity for Defense Arguments

What Model Ethical Standards Mean for Defendants ► Foregoing Procedural Protections ► Foregoing the Ability to Obscure Truth