Gavin Howe
While prosecutors enforce the law, they are not above it. In the United States, prosecutors are guided by the Justice Manual, which outlines the principles of federal prosecution. These principles aim to ensure consistency in prosecutorial decisions and provide remedies for unjustified departures from sound prosecutorial practices. However, prosecutors have broad authority and discretion in their public responsibilities, and misconduct often goes unpunished. Prosecutors enjoy legal protections, such as immunity from civil liability, and it is rare for them to face criminal penalties for misconduct in court. The public's interests and views should be considered by the chief prosecutor and designated assistants. Additionally, prosecutors play a role in shaping legislation and influencing criminal justice reform, further complicating the dynamic between policy and public opinion.
| Characteristics | Values |
|---|---|
| Prosecutors have immunity from civil liability | You can't sue them |
| Prosecutors can face criminal penalties for misconduct in court | Knowingly putting a lying witness on the stand or withholding evidence that points away from a defendant's guilt |
| Prosecutors have a duty of confidentiality | They should not provide non-public information to the media |
| Prosecutors should not make statements that prejudice a criminal proceeding or heighten public condemnation of the accused | They can make statements explaining why criminal charges have been declined or dismissed |
| Prosecutors should not re-enact law enforcement events for the media | They can invite media presence during investigative actions with careful consideration of the interests of all involved |
| Prosecutors should not place statements or evidence into the court record to circumvent the ABA Standards on Fair Trial and Public Discourse | N/A |
| Prosecutors should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement | N/A |
| Prosecutors should not display the accused for the media | N/A |
| Prosecutors should not enter into any agreement or informal understanding that results in acquiring an interest in a literary or media portrayal or account based on or arising out of the prosecutor’s involvement in the matter | N/A |
| Prosecutors should not make statements of fact or law, or offer evidence, that they do not reasonably believe to be true | N/A |
| Prosecutors should not represent law enforcement personnel who have worked on the criminal matter | N/A |
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What You'll Learn
Prosecutors are not above the law
Prosecutors enforce the law, but they are not above it. In a 1935 ruling in Berger v. United States, the U.S. Supreme Court defined how a prosecutor should behave:
> 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.
Prosecutors have broad authority and discretion, and a heightened duty of candour to the courts. They should not make statements or offer evidence that they do not reasonably believe to be true, and they should not make public statements that could prejudice a criminal proceeding or heighten public condemnation of the accused. They are afforded unique legal protections, including immunity from civil liability, and they rarely face consequences for documented misconduct.
Prosecutors generally serve the public and not any particular government agency, law enforcement officer, or unit. They do have to follow the same professional code of conduct as other lawyers and can be reprimanded, suspended, or disbarred if they do not. However, the disciplinary code is vague, and it is almost unheard of for a prosecutor to face criminal penalties for misconduct in court.
Prosecutors are not just enforcers of the law, but also makers of it. They can influence legislation and hinder legislative reform, particularly in the area of criminal justice. They have strong policy perspectives and can use their power to defeat bipartisan reform efforts.
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Prosecutors have immunity from civil liability
Prosecutors have traditionally been granted absolute immunity from civil liability for acts performed in the course of their official duties. This means that they are shielded from being sued for actions carried out in their capacity as prosecutors, regardless of their motivation. This immunity is based on the idea of protecting the proper functioning of the judicial process and is not meant to establish absolute prosecutorial immunity in all situations. For instance, absolute immunity does not cover situations in which the prosecutor makes prejudicial public statements, as this is considered a threat to the judicial process.
The immunity granted to prosecutors is not without its critics. Some argue that it enables prosecutors to disregard constitutional rights in pursuit of convictions, with little to no accountability. In fact, prosecutorial misconduct is a significant issue, contributing to wrongful convictions, yet prosecutors rarely face serious professional sanctions. This is partly due to the high bar for victims to overcome prosecutorial immunity and prove that the prosecutor's behaviour violated clearly established laws.
Despite the concerns, there are limited exceptions to prosecutorial immunity. In certain cases, prosecutors may be held accountable through disciplinary actions by the bar, local court rules, or appellate reversals of conviction. However, these proceedings are rare and do not always provide adequate redress for victims of prosecutorial misconduct.
To address these shortcomings, it has been suggested that federal and state legislatures abolish absolute immunity for prosecutors who engage in misconduct. This would allow affected individuals to seek justice and hold prosecutors accountable for their actions.
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Prosecutors can be disciplined
While prosecutors enforce the law, they are not above it. In a 1935 ruling in Berger v. United States, the U.S. Supreme Court defined how a prosecutor should behave:
> 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.
Prosecutors are afforded unique legal protections. They have immunity from civil liability, and it is rare for a prosecutor to face criminal penalties for something they did in court, such as withholding evidence that points away from a defendant's guilt. However, they are bound by the same professional code of conduct as other lawyers and can be reprimanded, suspended, or disbarred if they do not follow it. The disciplinary code, however, is vague and broadly requires attorneys to practice with competence, ethics, and lawfulness.
A 2003 report by the Center for Public Integrity identified 2,012 cases across the United States since 1970 in which a judge reversed a conviction, reduced a sentence, or dismissed charges due to prosecutorial misconduct. Despite this, few states separately document complaints against prosecutors, and it is uncommon for prosecutors to be disciplined. For instance, in Mississippi, none of the 516 bar complaints filed against attorneys in a year resulted in the disciplining of a prosecutor.
Prosecutors generally serve the public and not any particular government agency, law enforcement officer, or unit. They have a duty of candour to the courts and must not make statements or offer evidence that they do not reasonably believe to be true. They are also responsible for preventing investigators, law enforcement personnel, employees, or other associated persons from making extrajudicial statements or providing non-public information.
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Prosecutors should not make prejudicial public statements
While prosecutors have a great deal of latitude in making decisions concerning the enforcement of the law, they are expected to uphold certain standards and principles. These standards are designed to ensure the fair and effective exercise of prosecutorial discretion and responsibility.
Prosecutors may, however, make statements that inform the public of their actions and serve a legitimate law enforcement purpose. For example, they may explain why criminal charges have been declined or dismissed, but they must take care not to imply guilt or prejudice the interests of those involved. They may also respond to public statements from any source to protect the prosecution's legitimate interests, as long as there is no substantial likelihood of materially prejudicing a criminal proceeding.
In addition, prosecutors should exercise reasonable care to prevent investigators, law enforcement personnel, and other associates from making extrajudicial statements that the prosecutor would be prohibited from making. They should also be circumspect in publicly commenting on specific cases and avoid re-enacting law enforcement events for the media during the pendency of a criminal matter.
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Prosecutors should not display the accused for the media
The role of a prosecutor is to serve the public and act in the best interests of justice. This entails a duty of candour towards the courts and the public, which includes being circumspect in commenting on specific cases. While prosecutors have the authority to disclose information or make public statements, they must exercise caution to ensure that their actions do not prejudice the case or heighten public condemnation of the accused.
In the context of media interactions, prosecutors must be particularly mindful. They should not re-enact or assist in re-enacting law enforcement events for the media. Displaying the accused for the media, without a legitimate law enforcement purpose, can compromise the fairness of the trial. It can influence media coverage and shape public opinion, potentially impacting the behaviour of witnesses and jurors.
Furthermore, prosecutors should not invite media presence during investigative actions without carefully considering the interests of all involved. While accommodating reasonable media requests for access to public information and events is permissible, prosecutors must ensure that their actions do not prejudice the rights of suspects, defendants, and the public.
Additionally, prosecutors should refrain from entering into any agreement or understanding that involves their personal interests in the literary or media portrayal of the case. They should also be cautious about providing non-public information to the media, as it may compromise their duties of confidentiality and loyalty.
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Frequently asked questions
Prosecutors are sworn to enforce the law and they are guided by the principles outlined in the Justice Manual. However, there is evidence to suggest that prosecutors can and do refuse to enforce the law, and this is especially true in cases where they are not held accountable for their actions. For example, in a 2003 report by the Center for Public Integrity, there were 2,012 cases across the United States since 1970 in which a judge reversed a conviction, reduced a sentence, or dismissed charges due to prosecutorial misconduct.
Prosecutors are generally not held accountable for misconduct and it is very rare for them to face any consequences. They have immunity from civil liability and cannot be sued. They also do not face criminal penalties for misconduct in court, such as withholding evidence or putting a lying witness on the stand. However, they are bound by the same professional code of conduct as other lawyers and can be reprimanded, suspended, or disbarred if they do not practice competently, ethically, and lawfully.
Although it is uncommon, there are instances where prosecutors have faced discipline for refusing to enforce the law. For example, in the case of Orlando State's Attorney Aramis Ayala, who refused to seek the death penalty, the Florida Prosecuting Attorneys Association (FPAA) filed a brief against her, arguing that she had violated the separation-of-powers doctrine.
