Class 6: The Prosecution

This session examines the discretion of the prosecutor in the criminal justice system. We examine the power of prosecutors in plea bargaining, and, in particular, in deciding whether to seek the death penalty or resolve a case with a plea bargain, as well as the prosecutor’s power to obtain evidence and information by agreeing to dismiss charges or grant other favors to people with criminal charges. Prosecutors also have a duty to disclose exculpatory evidence to the defense and a limited responsibility to preserve evidence. Prof. Bright discusses with John Thompson his experience in spending 17 years on death row in Louisiana after evidence that would have proved his innocence was withheld by prosecutors. Thompson won a 14 million dollar verdict in Connick v. Thompson, but the Supreme Court overturned it. His case shows what happens when disclosure obligations are violated, and raises questions about the effectiveness of requiring prosecutors to disclose exculpatory evidence and the accountability of prosecutors who fail to do so.

A. Prosecutorial Discretion

This segment examines the broad discretion of prosecutors in deciding such things as whether to bring criminal charges, what crimes to charge, what penalties to seek, whether to resolve cases with plea bargains or trials, and how much information to share with the defense as well as the consequences of most state prosecutors being elected officials.


Prosecutorial Discretion, including:

  • Introduction
  • Excerpt from Ivan Solotaroff, The Last Face You’ll Ever See: The Private Life of the American Death Penalty (2001)
  • Prosecution of Capital Cases in Harris County, Texas
  • Another Prosecutor’s Perspective on the Death Penalty
  • A Minority Practice
Recommended Reading:


B. Plea Bargaining/Leniency for Testimony


Plea Bargaining/Leniency for Testimony (PDF), including:

  • North Carolina v. Alford, 400 U.S. 25 (1970)
  • Bordenkircher v. Hayes, 434 U.S. 357 (1978)
  • Plea practices in Capital Cases in Federal Courts –United States Attorneys’ Manual Title 9, Criminal Division
  • Notable Plea Bargains
  • State v. Wilson, 316 S.E.2d 46 (N.C. 1984)
  • Trading Leniency for Testimony
    • Johnson v. Florida, 44 So.3d 51 (20
    • Ricketts v. Adamson, 483 U.S. 1 (1987)
Recommended Reading:


C. Disclosure, Preservation of Evidence & Closing Argument


Disclosure, Preservation, Closing Argument (PDF), including:

  • Introduction
  • Disclosure and Preservation of Evidence
    • Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006)
    • Anthony Graves Released
    • Arizona v. Youngblood, 488 U.S. 51 (1988)
    • Youngblood Exonerated, Freed
  • Closing Argument
    • State v. Wilson, 404 So.2d 968 (La. 1981)
    • State v. Monday, 257 P.3d 551 (Wash. 2011)
    • Mitchell v. State, 136 P.3d 671 (Okla. Cr. App. 2006)
    • The U.S. Constitutional Standard
    • Darden v. Wainwright, 477 U.S. 168 (1986)
    • Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001)
    • People v. Fuiava, 269 P.3d 568 (Cal. 2012)
    • Calhoun v. United States, 133 S.Ct. 1136, (2013) (Statement of Sotomayor, J.)
Recommended Reading:




Interview of John Thompson:


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