Prosecutor as Minister of Justice

Special Duties of Prosecutors

Prosecutor as Minister of Justice

Model Rule 3.8 opens with a single lead-in, "The prosecutor in a criminal case shall:", and the duties that follow are addressed to prosecutors alone.¹ One idea ties them together, and the first comment to the rule states it in a sentence: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."² In practice the phrase means that a prosecutor's duties run past winning for one side.

The idea comes from Berger v. United States, which describes the federal prosecutor this way:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.³

The passage starts from who the prosecutor represents. A sovereign whose duty to govern impartially is as compelling as its duty to govern at all has no stake in a conviction for its own sake. Its stake is that justice be done, and the passage names two aims for that: guilt should not escape, and innocence should not suffer.⁴

A careless reader hears "minister of justice" as a demand for neutrality that softens the prosecutor's advocacy. Berger says the opposite, because the prosecutor "may prosecute with earnestness and vigor" and "should do so." Consider two prosecutors. One builds the strongest case the legitimate evidence allows and argues hard for conviction, and that prosecutor is doing the job. The other uses a method calculated to produce a wrongful conviction, and that prosecutor has struck a foul blow. The duty to avoid improper methods carries the same weight as the duty to use every legitimate means toward a just result.⁵

The prosecutor's duties run to the accused as well as to the public. Besides speaking for those who seek justice for a wrong, the prosecutor must see that the right person is accused, that the defendant gets a fair trial, and that the defendant receives every right protected by statute or constitution. Prosecutors therefore "should keep in mind their obligation to the accused at every stage of the proceeding."⁶ The reason for such heightened duties is the office's power. Prosecutors hold immense power over the freedom and even the lives of others, and they represent the sovereign public interest.⁷

Much of that power is discretion over whom to prosecute. A defendant who claims the prosecutor singled him out on the basis of race is not entitled to discovery on that claim unless he first shows that the government declined to prosecute similarly situated suspects of other races.⁸ Because a choice like that rests with the prosecutor, the prosecutor's disinterest matters a great deal. Young v. United States ex rel. Vuitton et Fils S.A. applies the point to a private lawyer appointed to prosecute criminal contempt, who must be as disinterested as a public prosecutor. A lawyer who accepts such an appointment while still representing a party to the underlying dispute holds two incompatible roles, since the partisan must advance one side and the prosecutor must pursue a just result.

The Court recognized the same special responsibility in Connick v. Thompson. Prosecutors have a "duty to seek justice, not merely to convict," and among their unique ethical obligations is the duty to produce Brady evidence to the defense. A lawyer who violates an ethical obligation is subject to professional discipline, including sanctions, suspension, and disbarment.⁹ The duty to seek justice also reaches past what any disciplinary standard could enforce. In Professor Laurie Levenson's words, a prosecutor "seeking justice often must go beyond the boundaries of the law in an effort to create informal procedures for justice that will apply when the law is silent."¹⁰

After a violation has occurred, the remedy is discipline. Professional responsibility standards are designed to be carried out through disciplinary sanctions, and trial courts, with few exceptions, have refused to grant after-the-fact relief for past violations. In particular, they have rejected defense claims that a prosecutor's violation of a professional responsibility standard should produce a new trial or the exclusion of evidence obtained through the violation.¹² A defendant who proves a breach has therefore shown a ground for discipline, and the breach alone does not win a new trial. Courts do act before the fact. A defense attorney with a disqualifying conflict of interest will be removed, and courts issue gag orders that bar prosecutors and defense counsel from public statements about a pending trial that the standards would forbid.¹³

Federal prosecutors answer to the same disciplinary system. Each federal district court adopts its own ethical standards, though many adopt the standards of the state where the district sits. Under the Citizen's Protection Act, known as the McDade Amendment, federal government lawyers, prosecutors included, are subject both to the district court's standards and to the "state laws * * * governing attorneys in each state where such [federal] attorney engages in the attorney's duties."¹⁴ Federal employment does not put a prosecutor outside the discipline that binds every other lawyer.

The rest of this chapter takes the duties of Rule 3.8 in turn: the limit on charging without probable cause, the protections for an accused who has no lawyer, the duty to disclose favorable evidence, the limits on subpoenaing lawyers, the restraints on public comment, and the post-conviction duties. It then turns to the no-contact rule as it applies to government lawyers, shows how the general candor rules operate with added force for prosecutors, and closes with government lawyers who are not prosecutors.