Mitigating Foul Blows
Abstract (to read the entire article go here):
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.