San Diego Law Review


Aviva Orenstein

Document Type



This Article develops a question that intrigued Fred: prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

Part II of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part III documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence. Part IV attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores the role of denial, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases. Part V examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part VI draws on these insights about prosecutorial denial to examine structural solutions to the urgent problems posed by postconviction innocence, including possible changes to ethical codes.