Hadar Aviram

Document Type




Part I presents the problem through an analysis of the opinion of the Court, Justice Scalia’s concurrence, and Justice Ginsburg’s dissent. Part II shows the role played by causation and culpability in framing the responsibility of prosecutors in discovery proceedings. Part III discusses the implications of discovery violations for § 1983 suits, in contrast to their role in direct and collateral review of the conviction itself. Part IV presents evidence from a solid body of literature in sociology and political science, explaining why the debate misses the essential understanding of how prosecutorial offices work. Part V tackles the thorny issue of prosecutorial, police, and judicial intent in constitutional violations, explaining why curbing § 1983 lawsuits to a narrow definition of respondeat superior is an inadequate solution for these violations. Part VI provides a series of solutions and recommendations, in the spirit of toning down hyperadversarialism: encouraging personnel transition between prosecution and defense, putting people who have been on both sides in charge of professional training, and reforming the law school curriculum and bar exams to address the need to develop the cognitive skill to see an issue from all perspectives, through the use of persuasive memo writing and performance tests. Finally, the epilogue provides an agenda for a future empirical study on prosecutorial and defense perceptions of facts and case strengths.



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