Are Make Believe Juries as Good for Prosecutors as Real Ones?

Anna Offit, Prosecuting in the Shadow of the Jury, 133 Nw. U. L. Rev. _ (forthcoming, 2019), available at SSRN. Rebecca Roiphe Scholars often speculate about how prosecutors exercise their vast discretion. Most of these critics make well-founded conclusions based on educated guesses about how prosecutors make the critical decisions that affect the fate of individual defendants and more broadly shape the community and legal system as a whole. In Prosecuting in the Shadow of the Jury, Anna Offit conjures a rare bird—empirical evidence about how prosecutors make discretionary decisions. Her evidence shows that prosecutors frequently make decisions by invoking a hypothetical juror to test arguments and assess the fairness of their proposed actions. Professor Offit bases her conclusions on 133 interviews with Assistant United States Attorneys over a five year period of time. Her work offers unique insight into the way prosecutors think and reason through their…

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