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The Pretrial Process

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Pretrial Process
Vincent Luckey
CJA/364
June 03, 2013
Keith Lima

Pretrial Process
The majority of wrongful convictions stem from the prosecution’s suppression of exculpatory evidence and the inability of the defendant’s attorneys to gain access to this evidence through discovery (Zalman, 2011, p. 463). Prosecutors generally represent the crime control mentality of society and from this perspective he or she views anyone accused of a crime as guilty. In some prosecutors eyes’ it may seem inconceivable to jeopardize the case by disclosing exculpatory evidence to a guilty defendant. The Brady v. Maryland case established a constitutional precedence for the requirement of prosecutors to disclose exculpatory evidence, but it is ultimately at the prosecutor’s discretion to release it.
Current constitutional and ethical laws are not enough to deter prosecutors from withholding exculpatory evidence and punishment is rare for doing so. “Richard Rosen conducted an empirical five-and-half-year nation-wide study from 1980 to 1986 on Brady violations and found that state bars imposed discipline only in six cases” (Barkow, 2010, pp. 2094-2095). The crime control pendulum seems solidly on the side of prosecutors in regard to the disclosure of exculpatory evidence because essentially they are the gatekeepers. This fact makes it close to impossible for the defendant to acquire helpful information from the prosecution. The discovery of exculpatory evidence after a conviction may take months or years, if ever. Once the appellant discovers exculpatory evidence, it is his or her burden to prove that the evidence would have made a substantial difference in the verdict, which is an uphill battle.

References
Barkow, R.E. (2010, June). Organizational guidelines for the prosecutor's office. Cardozo Law Review, 31(6), 2089-2118. Academic Search Complete database.
Zalman, M. (2011). Criminal procedure: Constitution and society (6th ed.). Retrieved from The University of Phoenix eBook Collection database.…...

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