Saturday, November 24, 2007



The following is a collection of cases involving a court’s discussion of the role of the prosecutor or the prosecution function. The Center will continually update this collection by adding and, as necessary, deleting cases. Please notify the Center if an error is discovered or if you are aware of additional cases that should be included.

National Rules and Standards

American Bar Association Model Rules of Professional Conduct

3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

American Bar Association Standards for Criminal Justice

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.

National District Attorneys Association Prosecution Standards

1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.


Berger v. U.S., 295 U.S. 78, 88 (1935).

" The United States Attorney 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 nor 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."

United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).

“ Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain and present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The state has the obligation to present the evidence. He need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth”.

In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).

Prosecutors are “Shepherd[s] of justice.” When Government lawyer, with enormous resources at his or her disposal, abuses power and ignores ethical standards, he or she not only undermines public trust, but inflicts damage beyond calculation to system of justice. This alone compels the responsible and ethical exercise of this power.

Appeal of Nicely, 18 A. 737 (PA 1889)

“ The District Attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victims. It seeks justice only--equal and impartial justice-- and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial official, but becomes a heated partisan.”

Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922).

“ [T]he duty of a prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute the guilty. He should always be interested in seeing that the truth and the right shall prevail….”

Fout v. State, 4 Tenn. 98 (1816)

“ He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions and individual malevolence, when he can not use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretions, requires it. …“Can these views be attained by leaving prosecutions to every attorney who will take a fee to prosecute? Does every one feel the responsibility imposed by the oath of the solicitor-general by his selection for the discharge of these duties, by the confidence of the public reposed in him, by a consciousness of the impartial duties he owes to society and his country?”

Hosford v. State, 525 So.2d 789, 792 (Miss. 1988).

" A fearless and earnest prosecuting attorney… is a bulwark to the peace, safety and happiness of the people. ….it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, …. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury.…”

Hurd v. People, 25 Mich 405, 416 (1872).

“ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community”

In re Peasley, 90 P.3d 754 (Ariz. 2004).

Prosecutor’s interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done; courts generally recognize that the ethical rules impose higher ethical standards on prosecutors.

Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982).

Prosecutors must always keep in mind that duty is to seek justice, not merely to convict, “which is most certainly a difficult duty to be carried out carefully and cautiously.” See also Lafond v. State, 89 P.3d 324 (Wyo. 2004).

Lindsey v. State, 725 P.2d 649 (WY 1986), quoting Commentary On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537-539 (1986).

" The difference in our roles as advocates derives from the degree of our authority and the disparity of our obligations. Defense counsel's legitimate and necessary goal is to achieve the best possible result for his client. His loyalty is to the individual client alone. The prosecutor, however, enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name."

Montoya v. State, 971 P.2d 134, 137 (Wyo. 1998).

Ethical duty of a prosecutor is an extraordinary obligation that exceeds that imposed upon defense counsel.

People v. Greenwall, 22 N.E. 182 (NY 1889).

“ The district attorney, representing the majesty of the people, and having no responsibility, except fairly to discharge his duty, should not in his remarks, in the hearing of the jury, go beyond the bounds of reasonable moderation.”

People v. Kelley, 142 Cal. Rptr. 457, 75 Cal. App. 3d 672 (1977).

A Prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.

State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000).

“ A prosecutor is a servant of the law and a representative of the people…. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.”


Collier, Criticisms of the Bar, 1819.

“ Of all offices in the gift of the Crown, that of Attorney General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike: the rank is only fourth or fifth rate, and the manner in which it has been attained is always suspected, though sometimes unjustly: he is pretty sue to be charged with having ascended by the usual steps of political fawning and judicial servility, and after all he is only to be considered as the servant of servants—the curse of the Israelites. Lord Bacon says, that men in high stations are thrice servants—of the King, of the state and of the time—but the Attorney General is obliged to submit to a quadruple servitude; or at least in fact than in appearance. . .The most unpleasant consequence of all however appears to be, that the nation at large must look upon the Attorney General as sort of ministerial spy—an informer of rather higher rank than those who have recently become notorious; whose business is to ferret out and prosecute all who, either by their actions or writings, are endeavouring to displace the personages to whom he is indebted for his situation, or who are attempting to promote any reform in the system they support. Most of the ministry are engaged in great questions of foreign policy. . .and they leave the Attorney General to bear the brunt at home; his hand may be said to be against everybody, and everybody’s hand against him; he must fight all their domestic battles, and repel and punish all attacks whether political or personal”.

From a letter read at the retirement dinner of Manhattan District Attorney William Travers Jerome, New York Times, May 8, 1909, p.2.

“ [T]he prosecuting officer occupies a semi-judicial position; that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duties he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be produced.”

From “Checkmates”, episode 14, from Season Four of The Practice., Original Air Date February 13, 2003, Copyright ABC television, 20th Century Fox and David E. Kelley Productions.

“ The Speech” by character Richard (Assistant District Attorney): “There are heroes in this world. They are called district attorneys. They don't get to have clients, people who smile at them at the end of the trial, who look them in the eye and say "thank you." Nobody's there to appreciate the district attorney because we work for the state and our gratitude comes from knowing there's a tide out there, a tide the size of a tsunami coming out of a bottomless cess pool. A tide called crime, which if left unchecked will rob every American of his freedom. A tide which strips individuals of the privilege of being able to walk down a dark street or to take $20 out of an ATM machine without fear of being mugged. All Congress does is talk, but it's the district attorney who grabs his sword, who digs into the trenches and fights the fight, who dogs justice day after day after day without thanks, without so much as a simple pat on the back. But we do it, we do it, we do it because we are the crusaders, the last frontier of American justice, knowing if a man cannot feel safe he can never, never feel free.”

The District Attorney’s Oath from the radio and television serial Mr. District Attorney:

“ And it shall be my duty, not only to prosecute to the limit of the law all those charged with crimes within this country, but to defend with equal vigor the rights and privileges of all its citizens.”

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