Ethical Justice
Chapter Nine: Ethical
Issues for Criminal
Prosecutors
Ethical Issues for
Criminal Prosecutors

In collaboration with their law enforcement
counterparts, criminal prosecutors are the most
powerful and influential agents of the criminal justice
system. They alone can decide the following:





Whether to bring charges against criminal suspects
before the court;
Whether a case or particular evidence is presented to a
grand jury;
Who gets called as a credible witness and who gets
charged as a co-defendants;
Whether additional charges are added during trial;
And, in the most publicized cases, who gets a plea deal
and who faces the death penalty.
Criminal Prosecutors:
Structure & Function

There are three primary types of criminal prosecutors:
1. U.S. Attorneys – operate at the Federal level, working
directly for the U.S. Attorney General, and representing
the United State government.
2. District Attorneys – elected officials that operate at the
borough or county level to represent local government in
the prosecution of criminal defendants.
3. City (aka Municipal) Attorneys – elected or appointed
officials, serving to represent and advise local
governments (e.g., assemblies, boards, administrators,
and department heads in villages, townships, and cities)
in criminal prosecutions, civil disputes, and other legal
matters.
Criminal Prosecutors:
Structure & Function


The criminal prosecutor’s mission is straight forward –
the just prosecution of criminal defendants. The ethical
prosecutor’s mission is the search for truth in the
pursuit of justice.
This also means avoiding a conflict of interest, which
occurs when a person or an agency has competing
loyalties, or loyalties that are at odds, because of their
need to satisfy multiple roles, duties, or obligations.
Ethical Issues with Law Enforcement

When a law enforcement agency refers a case for
prosecution, there are three discretionary options
available:
1. Prosecute
2. Decline prosecution
3. Further investigation required
Ethical Issues with Law Enforcement

In order for the ethical prosecutor to exercise their
discretion properly, and to assess the quality of the
investigation that has been conducted, attention must
be given to the following legal issues:






Reading the case file;
Overall investigative quality;
Warrants and probable cause;
Witness credibility;
Officer credibility; and
Credibility of forensic evidence and personnel.
Pretrial Ethical Issue

Prior to trial, there are myriad ways for an unethical
prosecutor to manipulate the criminal justice system in
order to achieve convictions without solid evidence or
reliable witnesses. These ethical issues include the
following:







Almost unlimited funding;
Abusing the Grand Jury;
Overcharging criminal defendants;
Plea deals and immunity;
Witness harassment and intimidation;
Brady violations; and
Fabricating, falsifying and suppressing evidence.
Ethical Issue During Trial

Once a trial is underway, there are more professionals
involved; each of them has their own ethical burden to
bear; and most of them are accountable directly to the
court, often under oath.

In terms of ethical issues, the following exist:



Problems that arise in court from the kinds of questions
prosecutors can and cannot ask, what they can and
cannot argue over, and evidence that they are not
allowed to reference or elicit from witnesses;
Subornation of perjury; and
Improper closing arguments.
Post Conviction


A criminal matter is not always settled by the reading
of the jury’s verdict at the end of a trial.
Upon conviction, some criminal matters enter the
appellate phase, where the defense has the right to
have their case reviewed for errors and impropriety
that may have influenced judge or jury in their
decisions.
Post Conviction

Post conviction, prosecutors have an ethical, and
sometimes legal, duty to preserve a copy of both the
discovery material provided to the defense and any
physical evidence that was collected.



They must be open to the examination and testing of
newly discovered evidence;
have the character to reconsider findings and decisions in
the light of any new evidence test results;
and be willing to admit mistakes when they have been
made.
Incentivized Misconduct

A lack of professional ethics and even professional
misconduct can be incentivized by prosecutorial
culture.
This includes:




The mentality associated with winning at any and all costs;
Receiving promotions and pay raises based on conviction
rates; and
Toxic agency policy with respect to retaining or failing to
severely punish prosecutors that engage in ethic violations,
misconduct or criminal acts.
Incentivized Misconduct

In order to rid prosecutorial culture of unethical
behavior, there must be:





Clear ethical and professional guidelines developed for
criminal prosecutors that are universal;
Mandated ethics training for all criminal prosecutors;
Mandated discipline and reporting of prosecutorial
misconduct to state bar associations by courts and
supervisors;
The internal regulation of the prosecutor’s office with
mandatory professional and conviction integrity units;
and
The removal of prosecutorial immunity from civil liability
for wrongful convictions.