prudent prosecutor, The

Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C

Prosecutors have grand jury subpoenas for testimony and for documents or other physical items at their disposal. They may seek search warrants and various forms of electronic surveillance orders. They may authorize and oversee secretive undercover investigations. They may order physical surveillance of targets or witnesses. They may send agents to interview witnesses overtly, at the witness's home or business. They may direct persons to provide fingerprints, voice exemplars, or other non-testimonial items of physical evidence. Finally, they may plea bargain with criminal actors, offering leniency or even immunity, in return for undercover assistance against other criminal targets and testimony later if requested.37

Although all criminal prosecution does not involve the prosecutor in investigation, "the importance of the investigative role lies not in the number of cases it affects, but in the significance of the role in the matters where it arises."38

Accordingly, Little has proposed a new model rule of investigative discretion that emphasizes the proportionality of prosecutorial judgment.39 Such a standard is necessary because investigative tactics that may be legal are not always proportionate. For example, criticisms of Independent Counsel Kenneth Starr's tactics - namely the subpoenas of bookstore records, the decision to subpoena Monica Lewinsky's mother to appear before the grand jury, and the surprise interview of Lewinsky without her lawyer-raise questions of discretion, not legality. Such tactics are employed by other prosecutors and are permitted by law. Good prosecutors need more than legal tactics; they require good discretion through proportionate judgment.

state or federal, that are begun from scratch by the prosecutor, the elements of choice multiply and the prosecutor's authority to initiate prosecution becomes a major factor in shaping the case to come."41 Prosecutors possess broad investigative discretion.

2. CHARGING

Prosecutors also have vast discretion to charge. The American Bar Association ("ABA") Model Rules and the ABA Standards for Criminal Justice acknowledge one restriction on the charging decision, namely that the prosecutor's decision must be supported by probable cause.42 That standard, however, may not be very restrictive in practice, and may provide a low threshold for charging. If probable cause is the only restriction on prosecutorial charging discretion, then it is a very broad power indeed.43

The profession's response to this broad power has been to identify standards that the prosecutor should follow in charging. The ABA Standards for Criminal Justice exemplify these numerous attempts to mold discretion by identifying factors that may be considered by prosecutors when they exercise "Discretion in the Charging Decision:"

the factors which the prosecutor may property consider in exercising his or her discretion are:

(i) the prosecutor's reasonable doubt that the accused is in fact guilty;

(ii) the extent of the harm caused by the offense;