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prudent prosecutor, The
Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C
Moral language also pervades discussions of the discretionary decision to charge. Professor Levenson argues that prosecutors use a moral standard to fill the gaps in the rules.
Thus, charging decisions take place in a gap in the rules - a gap intentionally left so that prosecutors can tailor justice. In order to fill the gap, prosecutors must apply both a practical sense of what is right and a moral standard. Practically, prosecutors must consider the likelihood of success if the case is prosecuted and the availability of resources to achieve success. Morally, prosecutors must consider whether conviction is "consistent with the public interest," in conjunction with their personal sense of the defendant's culpability for the crime, including the prosecutor's individual assessment of the credibility of witness' testimony, the accuracy of evidence and the need to punish the defendant for his actions.172
Professor Gershman proposed A Moral Standard for the Prosecutor's Exercise of the Charging Discretion.173 He explained that various legal, political, experiential, and ethical considerations inform and guide the charging decision.
personal, political, discriminatory, nor retaliatory motives have influenced the charging decision.174
Gershman advocated a standard of moral certainty before prosecutors proceed to charge.175
The moral certainty standard has many competitors. Professor Zacharias's prosecutor charges "only persons she truly considers guilty."176 Professor Uviller argues that when the issue is "in equipoise," the prosecutor may submit the case to the jury.177 Professor Freedman rejects the equipoise view for a reasonable doubt standard.178 Professor Kaplan wrote that the prosecutor must "actually believe" that the accused is guilty, and that it was "morally wrong" to initiate a prosecution unless one was "personally convinced" of guilt.179
Our prudent prosecutor errs in favor of disclosure. One virtuous prosecutor integrates personal and professional morality, while another refines the ethical ingredient by considering the morality of the people. They follow conscience beyond a reasonable doubt or to a moral certainty. All of them seek justice. Moral language permeates discussions of prosecutorial discretion.
III. MORAL JUDGMENT
A. SUBSTANTIVE MORAL JUDGMENT
Morality-centered theorists have had an important influence on contemporary legal ethics. The morality-centered theorists examine legal ethics from the perspective of substantive moral theory.180 They have addressed the relationship of role morality and common morality by asking, e.g., whether a good person can be a good lawyer or whether the adversary system permits conduct that would be prohibited by ordinary or universal morality. Their theme is illustrated in the "moral" of the first eight chapters of David Luban's Lawyers and Justice: "nothing permits a lawyer to discard her discretion or relieves her of the necessity of asking whether a client's project is worthy of a decent person's service."181
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