New York Federal Criminal Practice Blog
July 14, 2013

A Perfect Prosecution - People v. DSK

My latest article, an analysis of the prosecution of Dominique Strauss-Kahn as a lens though which we can critique our criminal process, can be downloaded (without registration) here

The abstract is as follows:

People v. Strauss-Kahn
is an ideal lens through which to examine the operation of a criminal justice system that privileges the presumption of guilt, or, to use the words of the U.S. Supreme Court in the 2012 decisions Lafler v. Cooper and Missouri v. Frye, has become “a system of pleas, not a system of trials.”

is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections.

Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be aggregated, analyzed and publicized.

Thank you all for your continuing support as I navigate a professional role as a practitioner-academic!

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