RECONCEIVING THE STANDARD CONCEPTION OF THE PROSECUTOR’S ROLE
Keywords:prosecutor’s role, prosecutorial conduct, prosecutorial misconduct, prosecutorial discretion, prosecutorial obligations, seek justice ethic, Boucher, Model Code of Professional Conduct, judicial reasoning, criminal law, ethics, cross-examination
The standard conception of the prosecutor’s role requires her to seek justice—to be a “minister of justice” who ensures that an accused receives a fair trial on the merits. This paper challenges the standard conception of the prosecutor’s role. It argues that the seek justice ethic undermines judicial decision-making about prosecutorial duties and conduct. It has no evident meaning, is internally contradictory, and incorporates concepts of morality rather than legality, such that it cannot usefully explain a lawyer’s duties within a system of law. It fails to describe the work that prosecutors actually do. The paper proposes a redefined standard conception that captures the dual roles that prosecutors play: deciding whether and how to pursue a criminal matter, and acting as an advocate in a criminal trial.