When Discretion Becomes Misconduct: Comparing Judges' and Laypeople's Perspectives on the Ethicality of Prosecutorial Behaviors

Research SummaryWe compared ratings provided by 355 judges and 372 laypeople on the ethicality of various prosecutorial behaviors and whether they should be investigated as possible misconduct. Most prosecutorial behaviors were sourced from exoneration cases and varied from highly egregious misconduct (e.g., manipulating exculpatory evidence) to more questionable in nature (e.g., opposing a defense expert witness on Frye grounds). Results showed that laypeople had generally stricter ethical standards—perceiving acts as more unethical (d = 0.36) and more worthy of investigation (21 of 27 acts; 77%) compared to judges. Notably, however, this varied based on individual acts. For some acts, specifically those with clearly established legal rules, judges had stricter ethical standards instead. Overall, our data showed wide variation in ethicality and investigation judgments across individuals, across respondent type, and across specific acts. Policy Implications Laypeople were more skeptical of prosecutorial discretion than judges—a skepticism that may be justified given that many of the behaviors stemmed from wrongful conviction cases. Yet, as experts, judges are in a better position to identify and report misconduct. This discrepancy between who perceives and who reports misconduct may partly explain why misconduct is seldom investigated or sanctioned. Laypeople, however, are not powerless to mitigate such injustices. As jurors, awareness of misconduct can protect them from being unduly influenced by improper prosecutorial tactics. As members of the court of public opinion, laypeople shape narratives about justice processes, apply pressure for institutional accountability, and can mobilize collective action when official outcomes clash with public values. Most critically, as voters, laypeople influence the platforms on which prosecutors run and who ultimately gets elected, which can help drive more ethical institutional norms within prosecutors’ offices. Our results highlight the challenges facing prosecutorial oversight and accountability, underscoring the roles that judges and laypeople can play in addressing them.