20.01.2020 in Ethics

Prosecutorial Ethics

While reviewing the duties of the prosecutor, it seems that every step he makes is foreseen by law and every action that is taken is also provide by the law, However, in reality, the prosecutors are forced to make tough and ethically dubious decisions that are practically irresolvable. This paper will specifically address the ethic duties of the prosecutor in the light of the Rule 3.8 Special Responsibilities of a Prosecutor provided by the Model Rules of Professional Conduct.

The ethic obligations of the prosecutor might be divided into three basic categories. The first one might refer to the general ethic duties; the second one might relate to the procedural rights of the accused, arrested or detained person and the third may refer to the rules of evidence.

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First of all, the prosecutor should ensure that the charge that has been pressed against the person is based on the credible evidence or reasonable cause. It is, at least, required by the Rule 3.8 Special Responsibilities of a Prosecutor. In this regard, few conclusions could be reached. The prosecutor has a right to press charges only in case there is reliable evidence that prove the fact that the person has been involved in committing the crime or another criminally prosecuted offence. The evidence that serve as a cause for the prosecution should be obtained and presented in accordance with the current laws. No evidence that have been retrieved with the violation of regulations would be admissible in the court. In case the evidence is proved to be inadmissible, the charged person has to be released. Moreover, he or she automatically is empowered to seek compensation for having been detained and publically humiliated. 

The key ethic issue in this regard refers to the decision made by the prosecutor as whether to charge the person with the crime or not. And the only guideline in this regard is the evidence that has been collected against the person. Despite the way in which the evidence has been obtained, the prosecutor should also check whether it could be interpreted in different ways and are there any other suspicions that the crime might have been committed by another person. 

Gershman refers to the special right of the prosecutor not to impede the truth. In other words, he should not be engaged in the conduct that distorts, subverts or suppresses the truth. This duty implies that the prosecutor’s obligation to serve the justice includes the avoidance of the conduct that intentionally corrupts the truth-finding process.

As to the truth, the prosecutor is also obliged to present the evidence to its counterpart in a timely manner. It is also important for the exercise of justice and for keeping the balance between two parties under the conditions of adversarial process. The duty of not impeding the truth also provides that the prosecutor will not hide the information that somehow undermines his arguments and makes his position less powerful and straightforward. 

Additionally, the prosecutor has no opportunity to subpoena the counsel of the defendant unless certain conditions are met. It is important for ensuring the confidentiality between the lawyer and his client. Once more, such actions are also crucial for keeping the balance between the defense and the prosecution, as a representative of the US government and public.

The Rule 3.8 Special Responsibilities of a Prosecutor obliges the prosecutor to take the following steps in order to ensure that the truth would be eventually established in the case. First of all, in case of disclosure the evidence that crates a reasonable likelihood that the crime has been committed by the person different from the defendant, the prosecutor must immediately inform the court or another authority about this evidence. If the conviction was obtained within prosecutor’s jurisdiction, he shall disclose the evidence to the defendant or convicted person. Moreover, in order to establish the final truth the prosecutor must renew the investigations to determine whether the defendant has been accused of the crime he has not committed. Finally, the Rule 38 provides that when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. All of this ensures that the prosecutor’s duty not to impede the truth is fulfilled.

The prosecution should also assist the defense in digging up the truth. To find out who is guilty and to condemn him or her is the eventual purpose o the justice system. And the prosecutors should realize that fact and mission of the justice system. Thus, they should also comprehend the importance of the cooperation with the defense counsels. The rational for this approach has been developed in Brady doctrine that asserts that the fundamental fairness prohibits the depriving the defendant of access to evidence that might establish his or her innocence. In line with this principle the court has required the prosecutors to permit the defendant the access to evidence for inspection and testing.

The prosecutor’s relations with the publicity have also been a subject for regulation by ethic canons. First of all, the prosecutor should respect the rights of the accused and his or her human dignity. He should aware of the pressures the public might have on the accused or defendant and take every action to prevent it from occurring. It specifically involves the cases when there are significant doubts as to the guilt of the accused. The prosecutor should realize how hard it might be for an innocent person to go through the hell of investigation, public admonishing and the trial. To ensure this ethic duty of non-disclosure, the prosecutor should inform the publicity the necessary statements only and refrain from making extrajudicial comments.

The ethic duties of the prosecutor also reach the area of the procedural rights of the accused person. The main rule in this regard state that the prosecutor should in no case benefit from the state of the accused and use his or her vulnerability in his favor. Moreover, the prosecutor has no right to benefit from his authority and powers assigned to him. No need to say that the situation in which the person finds himself after arrest is, to the very least, quite challenging and frustrating. And the prosecutor who deals with such matters on daily basis might very well benefit from the temporary weaknesses and the state of being not-protected of the defendant. 

The Rule 38 specifically prohibits the prosecutor not to seek to obtain from an unrepresented accused a waiver of important pretrial rights. In such cases the defendant cannot fully comprehend the situation and make informed choices. Moreover, the Rule 38 provides that the prosecutor is obliged to ensure that the defendant is informed of the right of having the counsel and that in case he or she cannot afford one, it can be provided by the state. All of these procedural rights constitute the right to due process and are crucial for the proper functioning of the justice system in the USA.

In conclusion, the fair and open system of prosecution is crucial for the proper administration of justice as well as for the harmony relations between the individual and state. The primary aim of the prosecutors is to ensure that the guilty person is imprisoned and that the innocent is set free and left undisturbed. The Model Rules of Professional Conduct advocated by the American Bar Association definitely facilities these processes and contributes to the proper performance of the duties of the prosecutor. Its stress made on the ethic aspect of prosecutor’s duties is also worth praising. The ethics should serve as the guideline for the prosecutor to follow while passing the most challenging decisions regarding the defendant. Despite some vagueness of these rules, they are important for ensuring the efficiency of justice system in terms of nowadays.

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