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Q&A with Quattrone Center Assistant Director Ross Miller on the invisibility of prosecutorial misconduct

March 02, 2022

The recently published report “Hidden Hazards” analyzes the varied allegations and findings of prosecutorial misconduct in state and federal courts throughout Pennsylvania.

On Thursday, March 3, Ross Miller, Assistant Director of the Quattrone Center for the Fair Administration of Justice, will participate in a panel on prosecutorial misconduct at the 17th annual Harry Frank Guggenheim Symposium on Crime in America at the John Jay College of Criminal Justice, “Justice at the Crossroads: Is the Reform Window Closing?”

John Hollway C’92, MAPP’18, Executive Director of the Quattrone Center, will moderate the panel. All sessions of the Symposium will be held as Zoom webinars, which are free to the public and require prior registration.

Here, Miller discusses the invisibility of prosecutorial misconduct and the findings of the Quattrone Center’s recently published report “Hidden Hazards,” which details the findings of the Center’s review of 4,644 opinions issued in Pennsylvania state and federal courts between 2000 and 2016 containing 7,207 separate claims of prosecutorial misconduct. 

Office of Communications: How does prosecutorial misconduct adversely affect the fair administration of justice?

Miller: Anytime there is an “error” in criminal justice, just like in any other systemic process, the accuracy of the outcomes can be affected. Given the unique role of the prosecutor, and the control they have over relevant information and evidence, their errors can go undetected by other actors and can have significant effects on any phase of the process.

Office of Communications: Why do you call prosecutorial misconduct an “invisible” problem?

As we illustrate in the report, the vast majority of criminal cases never go through a neutral fact-finding process. Only about 2% of cases go to trial and when a case is withdrawn, diverted, or resolved through a plea, the defense may never see the evidence in the case and it is never evaluated by a judge or jury. Those processes largely depend on the prosecutor’s characterization of the evidence.

Office of Communications: One of the report recommendations is to eliminate absolute immunity for prosecutors. Can you expand on this recommendation?

Miller: Many legal scholars are very critical of absolute immunity for prosecutors, so that recommendation is not novel, but one of the findings of the report in particular points at one issue. In the landmark absolute immunity case, Imbler v. Pachtman, the Supreme Court wrote that one of main reasons that civil liability was not necessary was that prosecutors, being lawyers, were subject to discipline for attorney-specific ethical violations. We found that in Pennsylvania disciplinary sanction for prosecutors was extremely rare, and seemingly plays no role in regulating prosecutor conduct. If the Imbler court got it wrong about professional discipline, and it appears it did, one of the primary motivations for that decision is simply invalid.

Office of Communications: A couple recommendations advocate for statutory changes, both civil (a new tort remedy for those harmed by intentional or grossly negligent prosecutorial misconduct) and criminal (making crimes of intentional suppression of evidence and potentially other prosecutorial misconduct). Can you speak to the political climate or likelihood of follow-through on these recommendations?

Miller: I wouldn’t presume that I could predict what the political responses would be to those specific recommendations, but I hope that they are not viewed through a political lens. Everyone who cares about the criminal justice system should be on the same page when it comes to eliminating errors and should be open to a variety of solutions.

Those recommendations are just two out of ten, and I’m confident there are plenty of other ways that creative, thoughtful people can address prosecutorial misconduct. I do think it is important for policymakers to think through all the dimensions of prosecutorial errors and the various ways they contribute to wrongful convictions. It is easy to think one-dimensionally, that “wrongful conviction” means, at its worst, that an innocent person was convicted of something they didn’t do. That should be motivating enough, but it’s not the whole story. Wrongful conviction caused by prosecutorial misconduct can also cause a culpable person to escape the justice process and cause the victim to be left with no justice at all. I can’t imagine that anyone believes any of those effects are acceptable outcomes.

Learn more about the pathbreaking research of the Quattrone Center.