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Prosecutors Should Feel the Chill

Sometimes someone says something so crisp that one can only feel awe and jealousy. Justice Sotomayor put me and everyone else to shame during oral arguments in Pottawattamie County v. McGhee.


During the oral arguments in Pottawattamie, Chief Justice Roberts and Justices Alito and Breyer kept niggling over the alleged “chilling effect” that allowing a lawsuit to proceed against unethical prosecutors, would have on ethical prosecutors. Do the innocent really become fearful when the guilty are brought to justice?

A Department of Justice lawyer brought up the chilling effect argument: And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.

Justice Sotomayor showed the wisdom that everyone else is lacking. She replied: 

A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated? Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated

Oral arg. at 21. In other words, yes, prosecutors should feel the chill. If there is reason to suspect that evidence has been fabricated, a prosecutor must not admit that evidence.  We’ve been inside the system too long. We’ve forgotten that prosecutors are supposed to be more than just lawyers. They’re supposed to be administrators of justice.


In most cases, lawyers take the Pontius Pilate approach to the reliability of evidence: “Let the jury decide.”  Truth is question for the jury to answer. Sure, few admit perjured evidence. If evidence is just merely fuzzy, though, a zealous advocate should seek to admit it.  Let the jury decide.

Prosecutors have been behaving as mere advocates. Yet prosecutors have a special place in the courtroom. A prosecutor is supposed to seek justice. Sending stinky evidence hoping a jury will sniff it out is inconsistent with that role.

A prosecutor who has doubts about the reliability of evidence should feel a chill. The prosecutor should say, “This feels unreliable. It’s not my role to merely advocate before a jury. Rather, I am to exercise my independent judgment. I am not supposed to seek convictions – but to seek justice. It is not just to submit evidence that seems false to a jury.”


Some had wondered if Justice Sotomayor – a former prosecutor herself – would unduly favor prosecutors. In a sense, she has. She’s reminded prosecutors about their role in the criminal justice system.

If you think evidence is unreliable, you should feel the chill. In fact, you should feel a lot more than a chill. You should feel revulsion. Don’t admit that evidence. You cannot wash your hands by sending unreliable evidence to a jury.


While Justice Sotomayor is not wise because she is a Latina, she is indeed wise. She gave all of us a primer on prosecutorial ethics. Were we listening?