20.01. Introduction

Then Supreme Court Justice Robert Jackson had this nice (although sexist) quote about the role that prosecutors play in our judicial system:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman…. 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.[1]

From this quote you can start to see how prosecutor are different from every other type of lawyer — including defense lawyers. Something as simple as the question: who is the prosecutor’s client can raise difficulties. Is it the state? The “people” that make up the state? The victim? The defendant whose constitutional rights must be respected? The ethical issues just compound from there – the need to keep the public informed and protected (pre-trial publicity) with the need to ensure that the defendant receives a fair trial.

A prosecutor has extraordinary power to greatly impact an individual’s life with a charging decision. The United States Supreme Court has described prosecutors this way:

[The prosecutor] 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.[2]

Because of the unique role that prosecutors play, the Rules contain a separate set of ethical obligations for prosecutors. The obligations are tinged with constitutional concerns and considerations.

[1] Robert H. Jackson, The Federal Prosecutor, Speech delivered at the Second Annual Conference of U.S. Attorneys, Washington, D.C. (April 1, 1940).  Reprinted in R. Michael Cassidy, Prosecutorial Ethics (West 2005).

[2] Berger v. United States, 295 U.S. 78, 88 (1935).