The Innocence Project has published a major new report on prosecutorial accountability. The report uses the recent Supreme Court case of Connick v. Thompson, which absolved the New Orleans DA’s office of civil liability for purposely withholding, and destroying, exculpatory evidence in a murder case where they obtained a death penalty verdict. The report makes a number of specific recommendations for reform, including:
1.Open File Discovery: To address concerns regarding the disclosure of exculpatory material, states should require open le discovery. One model is the North carolina statute which requires prosecutors to provide to the defense before trial the complete investigative les, including any material obtained by law enforcement, investigators’ notes, the required recordation of all oral statements and any other information obtained during the investigation. In 2013, Texas passed a similar law that includes protections sought by prosecutors to ensure that witness privacy and safety is not jeopardized by disclosure of such information. e rules should provide for work product privileges to protect the prosecuting attorney’s mental process while allowing the defendant access to factual information collected by the state.
2. Independent Oversight: Prosecutorial oversight should be vested in an independent state agency or within an existing state agency (inspector general or attorney general—except where the attorney general supervises the prosecutor who is the subject of the investigation) with the authority and resources to investigate allegations of prosecutorial misconduct and impose remedies and/or sanctions.
3.Enact a Law Limiting Immunity for Prosecutors: States should de ne the immunity for prosecutors by statute. As retired Justice John Paul Stevens has powerfully argued
in the wake of the ompson decision, prosecutorial immunity is a federal judge-made rule of law that can and should be overturned or modi ed by congress through an amendment to Section 1983 of the civil rights Act.