The Ethical Prosecutor

The Role of the Prosecutor – Seeking Justice

The prosecutor is held to a higher standard than other attorneys in our legal system due to the great responsibility that comes with the position. As the United States Supreme Court proclaimed in Berger v. United States:

  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. [3]  


Exercising Prosecutorial Discretion

The prosecutor’s authority to exercise discretion in charging decisions is a key component of our criminal justice system.[4] RPC 3.8(a) requires that the prosecutor refrain from prosecuting a charge not supported by probable cause, while national standards establish that a prosecution should only proceed on the basis of sufficient admissible evidence to support a conviction.[5] Prosecutorial discretion is subject to constitutional constraints such as equal protection and due process.[6] The prosecutor should only file charges that adequately encompass the offense or offenses believed to have been committed and that rationally address the nature and scope of the alleged criminal activity.[7] National standards specify a number of factors the prosecutor should consider, and factors that should not be considered, in charging decisions.[8]

Responsibilities to Victims

The pursuit of justice includes, in no small part, justice for victims. Crime victims in Nevada are accorded several constitutional and statutory rights in criminal proceedings.[9] However, justice cannot be achieved for victims, and victims cannot properly exercise their rights, without programs to inform them and assist them in navigating the justice system. While the prosecutor does not represent victims, available resources should be allocated to victim assistance programs in accordance with statutory requirements and national standards.[10]

Fairness in Discovery

While there are specific statutory responsibilities imposed upon the prosecutor in criminal procedure that fall within the scope of RPC 3.4, the most fundamental duty is the U.S. Supreme Court’s pronouncement in Brady v. Maryland that due process requires the timely disclosure of all material evidence possessed by the prosecution team that is favorable to the defense.[11] The Brady rule is codified in RPC 3.8(d), requiring disclosure of all evidence known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.[12] The duty encompasses impeachment evidence as well as exculpatory evidence.[13] Evidence is material when there is a reasonable probability that had the evidence been available to the defense, a different verdict would have resulted.[14] The duty of the prosecutor to disclose Brady material is present even if the defendant has made no request for the material.[15] The prosecutor has an affirmative duty to learn of any favorable evidence known to any party acting on the State’s behalf in a case.[16] The duty to disclose Brady material is a continuing one, applicable pre-trial, during trial and even post-trial.[17]

Fairness at Trial

In addition to constitutional limitations on the exclusion of jurors;[18] prosecutors are subject to intense scrutiny of statements at any stage of trial that may constitute prejudicial misconduct. The standard is “whether a prosecutor's statements so infected the proceedings with unfairness as to make the resulting conviction a denial of due process.”[19] Since it is reversible error if a prosecutor’s misconduct violates the right to a fair trial, it is vital that the prosecutor be familiar with extensive Nevada case law analyzing prosecutorial misconduct to avoid such pitfalls.[20]

Trial Publicity

The prohibition on extrajudicial statements set forth in RPC 3.6(a) extends to statements by the prosecutor in a criminal proceeding likely to increase public condemnation of the accused.[21] Prosecutors are further required under RPC 3.8(f) to exercise reasonable care to prevent any party acting on the State’s behalf in a case from making extrajudicial statements prohibited under Rule 3.6.[22] “The prosecutor should strive to protect the both the rights of the individual accused of a crime and the right of the public to know.”[23] Rule 3.6(b) specifies the type of actual information directly relevant to a case that is appropriate for disclosure, while national standards provide further detail on what information may or may not be appropriate for disclosure in a criminal proceeding.[24]