For the Defense - Vol. 4, Issue 2 - 39

prosecutor is, after all, human. As such,
prosecutors are subject to the same psychological
and emotional tolls as anyone else practicing in
criminal law.1 The considerable lead-up, sweat
equity, time invested (read: sacrifice), not to
mention the vast amount of resources allocated
to the pursuit of a high profile case, can result
in metaphorical blinders, or a loss of objectivity
when it comes to the charging decision, the
facts or, equally perilous, the law. Experts in
the legal and neuroscience fields refer to this
phenomenon as "tunnel vision," "cognitive bias,"
or, more simply, "rationalization." Susan Bandes,
a research professor at DePaul University College
of Law specializing in prosecutorial misconduct,
theorizes that prosecutorial bias arises from a
prosecutor's unparalleled divided loyalties - the
duty to objectively seek the lofty ideal of "justice"
and the duty to, at the very same time, be a
zealous advocate, representative of "the people,"
"the state," and the victims. Bandes opines that
prosecutors naturally acquire a "fierce loyalty" to
a particular world view of a case and, further, that
[t]his loyalty is do deep it abides even
when the version of events is thoroughly
discredited, or the suspect exculpated. It
results in a refusal to consider alternative
theories or suspects during the initial
investigation, or to accept the defendant's
exoneration as evidence of wrongful
conviction.2
The risk of "tunnel vision" is even greater in
high profile cases that are so "heavily influenced
by external pressures[:]"
Many of these pressures are political,
generated by the need for re-election,
the need for governmental funding, and
often vocal concerns of the community or
particular advocacy groups, such as victims'
rights groups. Such pressures overlap with
the garden-variety bureaucratic influences,
such as the desire to maintain the reputation
of the agency or at least its most prominent
agents, even in the face of scandal.3
As is normally the case in the practice of law,
there is no cure-all or easy fix for this problem. We
raise it from the outset because there is perhaps
no greater risk to the fairness of the criminal

justice system in a highly publicized case than the
prosecutor who loses objectivity.4
So, what can you do? Be on alert for indicia of
"tunnel vision." Examples we have come across
include overextension of a statute in an effort
to fit the conduct to the crime; unreasonable
or disparate positions in negotiations;
charging a single, sprawling conspiracy count
notwithstanding the absence of a common goal
or purpose shared by the alleged coconspirators.5
The practice of charging vast, virtually limitless
conspiracy counts has been an evolving
prosecutorial tactic over the last ten years or so,
to the extent that it is frequently accepted as
"fair play" by trial courts, reluctant to impede
upon the charging decision of the prosecution.
But a conspiracy charge, like any other criminal
offense, must state a cognizable offense.6 Flash
back to Criminal Law 101 from your 1L year, if
confronted with a conspiracy count of this nature,
read up on the "wheel-rim-spoke" case law in
the jurisdiction and challenge any insufficiencies
of the conspiracy count in negotiations with
the prosecution, pretrial motions and then, as
necessary, throughout the trial.7
Understanding and anticipating the symptoms
of cognitive bias can help defense counsel respond
to it more effectively. For example, in these
situations, it is very important to submit in writing
direct, pointed and specific Brady/Giglio requests.8
One danger of prosecutorial "blinders" or "tunnel
vision" is a tendency to overlook exculpatory
material. Do not merely accept the prosecutor's
representation that it has complied with its
obligations-carefully draft discovery requests,
specifically targeting Brady and Giglio materials
and potential sources of the same, thereby making
a record that will not allow the prosecution to use
your acquiescence or failure to make such requests
as a waiver of your right to the same.

Know The Case Cold
While this universally applies to all client
representations, it bears repeating here: prepare,
prepare, prepare. Don't focus only on the path
directly in front of you, look around the corner,
and then the next two corners. Evaluate the
case with a fine-tooth comb, mapping out every
permutation, every potential pitfall. Recognize

Vol. 4, Issue 2

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For The Defense

39



For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
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For the Defense - Vol. 4, Issue 2 - 6
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