Document Type
Article
Publication Title
George Mason Law Review
Publication Date
2009
Volume
16:2
First Page
303
Abstract
(Excerpt)
It is a truism that prosecutors are called not just to win, not just to zealously represent their clients, but rather to "seek justice." What this admonition means in practice, however, is notoriously slippery. Most obviously, it means that prosecutors should not convict (or charge) the innocent. It is also quite commonly understood to mean that prosecutors should "play by the rules" and should ensure that defendants are afforded a fair process. More fundamentally, it means that prosecutors should ensure that the power of the state is wielded judiciously. In other words, the prosecutor has an obligation not just to ensure procedural fairness, but also to ensure substantive justice.
These three special prosecutorial obligations are, in many ways, quite different from each other. The obligation to avoid prosecuting the innocent is straightforward and rather easy for prosecutors to understand (if not always easy to apply in practice). It is also regulated, albeit indirectly, by jury verdicts and judicial acquittals. Similarly, the obligation to ensure a fair process is based on generally accepted principles—largely embodied in the Constitution—and is heavily regulated by judicial oversight. The obligation to seek substantive justice, however, is not closely regulated. Indeed, it is hardly regulated at all. We call it prosecutorial discretion, and it is the core of the prosecution function, the most important thing prosecutors do.