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YOUR LEGAL RIGHTS | What prevents prosecutors from abusing their power?

The old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true. They are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science. 
davidbetras032020
Attorney David Betras

Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. 

The lawyers who represent the people of the United States or the people of Ohio have near total discretion to decide who is charged and with what. The old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true. They are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science. 

To balance the legal playing field and protect society, the rules of criminal procedure, strict guidelines and boundaries designed to prevent prosecutors from abusing their authority have been established by codes of conduct administered by the courts and bar associations. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions. 

This principle is embodied in Ohio’s Code of Professional Conduct which states: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS): “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict … The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses and respect the constitutional and legal rights of all persons, including suspects and defendants.”

Along with defining prosecutors’ role, there are rules, laws, and Supreme Court decisions also defining their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense …”

This standard encapsulates the Supreme Court’s 1963 decision in Brady v. Maryland. In that case, a 7-2 majority held that “… the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment ... Society wins not only when the guilty are convicted, but when criminal trials are fair.” 

The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley  that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. 

Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.

This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done. 

Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.

—  Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to news@mahoningmatters.com.