Natty Shafer Law

Utah lawyer for criminal and immigration cases

Prosecutors with Weak Cases


One the frustrating things about being a defense attorney is the presumption that prosecutors only bring cases when they are sure the defendant is guilty. Unfortunately, prosecutors just do not spend a lot of time pondering whether each individual defendant is guilty. Now an interesting study from earlier this year found that one of the predictive factors in having a case later overturned was the prosecutor having had a weak case. The study compared the overturned convictions with what they called “near misses,” or cases where an innocent defendant was indicted but released before a conviction. (To determine that the near misses were actually innocent, the study examined the evidence to see if the person was actually innocent.) Overall in the near misses, the prosecutors actually had stronger cases. This is counterintuitive as we usually expect weaker cases to be dismissed sooner and stronger cases to have a higher chance of conviction.

To explain this phenomenon, some explanations are more charitable than others. Among the more generous interpretations are that prosecutors, realizing the weakness of their case, prepare for trial better, or that this is merely a failing of the human mind. Prosecutors who indict in spite of a weak case must first convince themselves of the correctness of their position. That internal conviction “translates” well with jury, and the jury convicts because of the confidence of the prosecutor. A less generous interpretation is that prosecutors with weak cases take active measures to illegally withhold evidence from the defendant. They become so committed to proving the defendant’s guilt that evidence potentially exonerating the defendant is discounted. In some of the cases the study examined, the prosecutor failed to turn over exculpatory evidence.

Other possible explanations the study highlighted are that prosecutors might behave differently when they have a weak case. While the police and the prosecutor are still investigating, they often realize they need to shore up weak aspects of their case. In some of the overturned convictions, the prosecutor used a lineup based on a merely passing resemblance to the victim’s description of the perpetrator; some victims feel compelled to select someone out of a lineup, but once a victim chooses someone they are unwilling or unable to tackle the idea they may have made a misidentification. In some cases, the prosecutor used a snitch to provide corroborating testimony. (The word “snitch” has a specific use in terms of testimony. It refers to someone who is not an eyewitness, but that supposedly gets an accused person to confess or corroborate all or part of the case against them. For myriad reasons, such testimony is extremely unreliable. Often, a snitch will receive compensation in the form of a reduced sentence or better living conditions in exchange for testimony. Unfortunately, juries often give snitches too much credence.) These actions have the effect of confirming a prosecutor’s incorrect hunch about a case, and people love when their hunches are confirmed.

This is just one of the many reasons that defense attorneys frequently remind juries to hear all the evidence and evaluate it on its own terms. Prosecutors frequently are wrong, and, as this study suggests, sometimes more likely to obtain a conviction when a case is weaker. That is why juries must actually listen to the evidence presented and uphold their duty to find a defendant guilty only when they are guilty beyond a reasonable doubt.

Author: Natty Shafer

Attorney practicing immigration and criminal law

5 thoughts on “Prosecutors with Weak Cases

  1. It’s interesting that the whole scenario of the innocent man wrongly convicted used to be the stuff of big Hollywood movies or made-for-TV specials. But as we have realized just how often this happens, it has become more commonplace to see it as part of the plot on TV shows. Each time the prosecutor seems reluctant to let go of his/her idea of justice.

    • Yes, the certainty of DNA evidence has highlighted how unreliable other evidence can be. Almost every other type of evidence is subject to misinterpretation or misuse. Human memory just is not as good as the average person thinks it is. Other types of physical evidence can narrow the field, but it’s hard to quantify how many people or objects they eliminate or implicate. Unless a crime lab is engaging in outright fraud, though, DNA evidence is exceedingly specific. (There have been occasional news stories about crime labs out-and-out lying about their evidence.)

  2. Prosecutors are not interested in justice, making society safer, or doing the right thing. They are only concerned with their conviction rates and careers. They will convince themselves that they are “doing the Lord’s work” when in reality they are hell bent on getting a conviction regardless of guilt. Even when they have a very weak or no case at all, once they have set the wheels of injustice in motion with an indictment, they will not back down so they can save face. This is especially true at the federal level.

    • While a agree with you that many prosecutors are overly concerned with their conviction rates and careers, I would caution against saying all prosecutors are that way. Prosecutors have many reasons for their choices. A prosecutor working in Panguitch, Utah probably behaves a bit differently than one working in Salt Lake City. Their case loads and types of cases are completely different.

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