prudent prosecutor, The

During the late 1960s and 1970s, academics and criminal justice experts examined prosecutorial discretion and, in particular, focused attention on the development of prosecutorial standards related to charging decisions. The broad debate that ensued explored the tension between the countervailing policy goals inherent in prosecutorial discretion: the goal of ensuring that prosecutors charge in a uniform, consistent, and non-arbitrary manner must be balanced against the need for sufficient latitude, flexibility, and sensitivity in adjusting charging decisions to individual circumstances. Whether the tension between these competing policy goals of flexibility and consistency can ever be conclusively resolved remains in doubt.

Twenty years after the onset of the debate, prosecutorial discretion has expanded rather than contracted. Today in the United States, commentators typically view prosecutors - both on the federal and local level - as possessing broad discretionary powers regarding investigatory and charging decisions.30

a juvenile court hearing.31 Proposition 21 gives adult criminal courts automatic jurisdiction over minors charged with murder or one of certain enumerated sex offenses. The decision to charge will determine the court's jurisdiction.32 Judicial organizations characterized the legislation as a "power grab" by district attorneys that would enhance prosecutorial discretion at the expense of judicial discretion. The legislation also, however, adds to the list of serious felonies for which plea bargaining is prohibited - an apparent restriction on prosecutorial discretion.33 Even those who agree that discretion is a valuable part of our criminal justice system may disagree about who is best qualified to exercise it.

B. WHEN DISCRETION APPLIES

Prosecutorial discretionary power is quite broad and often unregulated. One annual survey of criminal law reiterates this theme of the breadth and scope of prosecutorial discretion each year:

Courts recognize a prosecutor's broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine and in part because "the decision to prosecute is particularly ill-suited to judicial review." In the absence of contrary evidence, courts presume that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner. So long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests within her discretion. A prosecutor has broad authority to decide whether to investigate, grant immunity, or permit a plea bargain, and to determine whether to bring charges, what charges to bring, when to bring charges, and where to bring charges.34

1. INVESTIGATION

tory decisions about business fraud, public corruption, and organized crime. Under the "investigative role" of the prosecutor, Little includes the prosecutor's directions to law enforcement agents as well as prosecutorial advice to agents who seek guidance about these investigations.36 He provides the following catalogue of activities included in the prosecutor's investigative role: