Prosecutorial ethics: the charging decision.

Author:Sinha, Hans P.

THIS ARTICLE IS THE FIRST in a series that will examine the ethical rules and professional standards applicable to prosecutors. The article begins with an in-depth examination of the history and development of Rule 3.8 of the Model Rules of Professional Conduct--"The Special Responsibilities of a Prosecutor," and specifically subsection (a) dealing with the charging duties of a prosecutor. This examination will include a look at the rule itself, a comparison of state variations of the rule, as well as the aspirational standards promulgated by the American Bar Association and the National District Attorneys Association. Successive articles will provide an overview of the remaining subsections of Rule 3.8, as well as some of the other rules a prosecutor most often encounters. The series of articles will end with a discussion of an inextricably intertwined issue--that of prosecutorial immunity. The goal of the articles is not to pontificate as to what should be, but rather to provide an overview of what is, all in the hope that the better informed prosecutors are, the better they can exercise their powers as both an advocate and a minister of justice, and the less likely they will find themselves on the short end of an ethical complaint.


The American prosecutor, local, state or federal, wields enormous power. As Justice Jackson noted in his often quoted speech to federal prosecutors in 1940:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret sessions, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. (1) By far the primary source for this power comes from the prosecutor's unbridled discretion to initiate prosecutions. The prosecutor, and the prosecutor alone, as Justice Jackson noted, decides whether to bring charges, whom to charge, and what those charges should be. While there are certain checks built into the system to temper this discretion, the grand jury being one of them, the reality is that if a prosecutor wants to bring charges against someone, the prosecutor will be able to do so. Prosecutors' discretion carries through the entire prosecution in terms of deciding the overall strategy of the prosecution. They direct the prosecution. Again, while certain checks on their discretion do exist by way of the judge, the defense and the victim, an experienced prosecutor can in all reality sit down at the onset of a typical case and fairly accurately plan and predict the outcome of the case. In doing so a prosecutor will primarily draw upon his experiential knowledge of the system as a whole--how the facts fit the law, how the defense will react, how the judge will rule on disputed issues, and how the case will ultimately play out before the fact-finder. While no case outcome can be predicted with certainty, it is the prosecutors' experience that provides them with the knowledge to successfully shepherd the case through the labyrinth of the criminal justice system. It is, however, their discretion that enables them to apply this experience in the way they determine best fits the case.

Any time an official is given wide latitude to wield power, there exists the possibility of an abuse of such power. This is especially so if there are no standards to rein in or guide the official in the use of such discretion. Indeed, as the Supreme Court has noted, discretion without standards "encourages an arbitrary and discriminatory enforcement of the law." (2) Prosecutors, however, do have standards and rules to guide their discretion and their behavior in general. All prosecutors are bound by their jurisdictions' Rules of Professional Conduct--mandatory rules which, if violated, can lead to disciplinary proceedings being initiated against the prosecutor. In addition, the American Bar Association and the National District Attorneys Association have promulgated aspirational prosecution standards to further guide prosecutors in their quest to act ethically and professionally. Similarly, the Department of Justice has promulgated extensive guidelines for federal prosecutors. A thorough knowledge of these rules and standards is desirable for every prosecutor. Not only does a familiarity with these rules help the prosecutor better wield his powers in an effective and just way, but, in a time when ethical complaints are increasingly filed against prosecutors, an intimate familiarity with the mandatory Rules of Professional Conduct is a self-preserving necessity for all prosecutors.

All the rules in the world, however, cannot an ethical person make. As with all professions, when all is said and done, it is the prosecutor's innate sense of what is right and wrong that will ultimately guide him in his quest to not only be an effective advocate but also a minister of justice. As Justice Jackson noted in concluding his remarks:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility. (3) HISTORY AND DEVELOPMENT OF PROFESSIONAL RULES OF CONDUCT

There can be little doubt that, as a whole, prosecutors set the standard for ethics and professionalism in court. If they do not, they should. Prosecutors must strive for the highest possible ethical and professional standard in everything they do. If they fail to do so, the overall ethical and professional level in their jurisdiction will invariably deteriorate. The judiciary, the defense bar, and the public, look toward the prosecution to set the standard. If prosecutors are seen as cutting corners, ethically or professionally, the eventual outcome will be that others will cut even bigger corners, and a race to the proverbial bottom will have begun--a race the defense will invariably not only win, but also benefit from the most.

Ideally, all prosecutors possess that innate sense of right and wrong that Justice Jackson alluded to in 1940. Knowing, however, that this is not always the case, and realizing that even when it is the case, further guidance is desirable, rules delineating what constitutes professional and ethical conduct, have been formulated. Interestingly, these rules, termed Rules of Professional Conduct in most jurisdictions, arguably are misnamed. They really provide guidelines as to what is ethical, the minimum level of standards that a prosecutor must adhere to, or when phrased in the negative, what he cannot do. The rules, in other words, provide the prosecutor with ethical benchmarks. They do not, contrary to their "professional" nomenclature, provide professional guidance per se.

One way to help define professionalism and ethics is by looking towards the history and development of these concepts in relation to the legal profession as a whole and prosecutors in particular. The term profession comes from the Latin term professionem, meaning to make a public declaration. (4) Perhaps the most commonly cited definition of the legal profession is Dean Roscoe Pound's statement that "[t]he term refers to a group of men pursuing a learned art as a common calling in the spirit of public service--no less public service because it may incidentally be a means of a livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose." (5)

While Dean Pound's statement is true for all lawyers, his last sentence--"[p]ursuit of the learned in the spirit of public service"--particularly speaks to prosecutors. Other lawyers may engage in pro bono representation now and then; prosecutors do nothing but public service. They are in a real way the true...

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