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A Modest Proposal for Prosecutors Who Lie

Summary:
The title is a little simplified because this post is not just about prosecutors who lie. It’s also about those who hide exculpatory evidence and get witnesses to lie. The proposal is this: Any prosecutor who does this should be charged with a crime and the penalty should be equal to the penalty that the judge has imposed on the defendant. The one exception is when the judge has imposed capital punishment. In that case, the penalty for the prosecutor should be life in prison without the possibility of parole. This should be so even if it can be shown that the defendant was guilty. Prosecutors today have little fear of going to prison for a long time for lying, withholding exculpatory evidence, or getting witnesses to lie. If they knew that they had some reasonable

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The title is a little simplified because this post is not just about prosecutors who lie. It’s also about those who hide exculpatory evidence and get witnesses to lie.

The proposal is this: Any prosecutor who does this should be charged with a crime and the penalty should be equal to the penalty that the judge has imposed on the defendant. The one exception is when the judge has imposed capital punishment. In that case, the penalty for the prosecutor should be life in prison without the possibility of parole.

This should be so even if it can be shown that the defendant was guilty.

Prosecutors today have little fear of going to prison for a long time for lying, withholding exculpatory evidence, or getting witnesses to lie. If they knew that they had some reasonable probability of getting caught and severely penalized, they would clean up their acts.

Will there be downsides? Sure. What if, for example, the jury finds that the prosecutor accidentally withheld evidence? But there’s a solution for that. Go back to the old mens rea criterion. The prosecutor has to be shown to have had criminal intent.

Will there nevertheless be cases where a jury finds criminal intent where there wasn’t? Yes. It will probably be rare and one thing that will make it rare is that prosecutors will be on the ball to make sure any exculpatory evidence, for example, is revealed and to make sure that they don’t coach witnesses to lie.

If you’re tempted to argue that this is a bad idea–and I’m sure some people will–before you write your argument, see if it would apply also to the problems with our current system where innocent people often face harsh punishment.

HT2 Thomas Nagle for previous discussions.

David Henderson
David Henderson is a British economist. He was the Head of the Economics and Statistics Department at the OECD in 1984–1992. Before that he worked as an academic economist in Britain, first at Oxford (Fellow of Lincoln College) and later at University College London (Professor of Economics, 1975–1983); as a British civil servant (first as an Economic Advisor in HM Treasury, and later as Chief Economist in the Ministry of Aviation); and as a staff member of the World Bank (1969–1975). In 1985 he gave the BBC Reith Lectures, which were published in the book Innocence and Design: The Influence of Economic Ideas on Policy (Blackwell, 1986).

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