2018] AGAINST ADVERSARY PROSECUTION 1421
Prosecutors, as well as the general public, see the criminal justice system as an
adversarial contest between two sides.5 The government wins this contest if
the defendant is convicted and punished. The government loses if the
defendant is acquitted or the conviction is later vacated. Consequently, the
prosecutor is expected to advocate zealously for conviction and punishment.
This means they must make strategic decisions that will maximize the
likelihood of victory, just as a private lawyer would act strategically on behalf
of their client.
Of course, prosecutors are not supposed to be mere adversaries in our
system—they also have a special duty to “seek justice.” The American Bar
Association’s (“ABA”) Model Rules of Professional Conduct instruct that “[a]
prosecutor has the responsibility of a minister of justice and not simply that
of an advocate,” and that this responsibility entails ensuring “that the
defendant is accorded procedural justice.”6 Prosecutors are thus described as
having a “dual role.”7 They must seek convictions and punishments in an
adversary contest, while also working to ensure the fairness of that contest.
But these two roles are in conflict with one another. Adversarial lawyering
is essentially amoral—it requires acting strategically to win litigation, however
the client defines victory, regardless of the lawyer’s own ethical commitments.
Seeking justice, however, requires choosing what substantive values to pursue.
And so these two roles push prosecutors in different directions. For any
particular choice a prosecutor makes in a case—e.g., adding a count, offering
plea-bargain terms, revealing evidence to the defendant, fighting a post-
5. Former Attorney General Richard Thornburgh, for example, has described the
prosecutor’s job as “constantly pushing the edge of the envelope out to see if you can get an edge
for the prosecution” because “[y]ou’re trying to get every edge you can on those people who are
devising increasingly more intricate schemes to rip off the public, hiring the best lawyers,
providing the best defenses.” Jim McGee, War on Crime Expands U. S. Prosecutors’ Powers, WASH.
POST (Jan. 10, 1993), https://www.washingtonpost.com/archive/politics/1993/01/10/war-on-
crime-expands-us-prosecutors-powers/867c0d8e-dc55-4918-9c8a-b3bb7ef7f7a4; see also Object
Anyway, Radiolab Presents: More Perfect, WNYC (July 15, 2016), https://www.wnycstudios.org/
story/object-anyway (quoting a prosecutor as stating that “there isn’t a prosecutor in the country”
that would avoid making a racially motivated peremptory challenge if they thought it would help
win them a conviction). Note also that the media commonly refers to convictions as “wins” or
“victories” for the prosecution. See, e.g., Alex Berenson, Prosecutors Score White-Collar Victories, N.Y.
TIMES (Apr. 4, 2004), http://www.nytimes.com/2004/04/04/us/prosecutors-score-white-collar-
victories.html (“‘The conviction rate in these cases is 85 percent in federal court,’ said Ira Lee
Sorkin, a New York defense lawyer and former prosecutor. ‘It’s not hard to win these cases.’”).
6. MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS’N 2016).
7. See, e.g., Alafair Burke, Prosecution (is) Complex, 10 OHIO ST. J. CRIM. L. 703, 706 (2013)
(reviewing DANIEL S. MEDWED, PROSECUTION COMPLEX: AMERICA’S RACE TO CONVICT AND ITS
IMPACT ON THE INNOCENT (2012)); R. Michael Cassidy, Character and Context: What Virtue Theory
Can Teach Us About a Prosecutor’s Ethical Duty to “Seek Justice,” 82 NOTRE DAME L. REV. 635, 651
n.125 (2006); Fisher, supra note 4, at 235–41; Fred C. Zacharias, Structuring the Ethics of
Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 72 (1991). See generally
Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unco nverted from the Post-
Conviction Pulpit, 84 WASH. L. REV. 35 (2009) (arguing for greater involvement of prosecutors in
investigating wrongful convictions).