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77 Alb. L. Rev. 881 (2013-2014)
Prosecutorial Misconduct in the Digital Age

handle is hein.journals/albany77 and id is 903 raw text is: PROSECUTORIAL MISCONDUCT IN THE DIGITAL AGE John G. Browning* I. INTRODUCTION Prosecutorial misconduct, which this article defines as what occurs when a prosecutor deliberately engages in dishonest or fraudulent behavior calculated to produce an unjust result, is- according to many legal scholars-seriously underreported. One study utilizing a computer-assisted review revealed that there have only been just over one hundred reported cases of professional discipline of federal and state prosecutors in the past century-an average of approximately one disciplinary case per year.1 Another leading scholar in the area has concluded that prosecutorial discipline is so rare as to make its use virtually a nullity.2 Why is this? Many reasons emerge, not the least of which is a practical, empirical obstacle to accurately assessing the problem: prosecutors who engage in such misconduct presumably don't want to be caught, and will take steps to conceal their actions. Another reason is the autonomy enjoyed by prosecutors' offices insofar as their internal policies are concerned. The considerable discretion afforded to prosecutors over whom to prosecute and which offenses to charge, coupled with a lack of external oversight of prosecutors' offices, fosters an environment in which misconduct can remain undetected and unchecked. Yet another reason is sheer volume: most criminal cases in the United States result in plea bargains, which are rarely subjected to judicial review or extensive * John G. Browning is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith, LLP and the author of three books on social media and the law. He is a graduate of Rutgers University and the University of Texas School of Law, and serves as an adjunct professor at SMU Dedman School of Law, where he teaches the course, Social Media and the Law. 1 See Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 744 & nn.80, 82 & 86 (2001); see also Monroe H. Freedman, Professional Discipline of Prosecutors: A Response to Professor Zacharias, 80 HOFSTRA L. REV. 121, 124 (2001) (observing that Professor Zacharias's study found just over one hundred cases dating back to 1886, which amounted to fewer than one per year). 2 BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT § 1.8(d) (1998).