07 May 2008

What is a Prosecutor's Function?

Having stumbled over the ABA's multi-page explanation of a prosecutor's function, and never having heard of this before, I thought I might spend some time going over what is found therein. It's broken up into several sections and I think I'll try to handle one or two a day, starting from the beginning.
Standard 3-1.1 The Function of the Standards

These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Hmmm, I think that translates as "These standards are not intended for use in evaluation of prosecutorial conduct, except when the conduct pertains to prosecutors."
Standard 3-1.2 The Function of the Prosecutor

(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
Well, that's it folks, we've solved the mystery of what a prosecutor's function is: a prosecutor prosecutes. No need to explore this any further - not that this stops them.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
So, first I'm somone who is court appointed to administer the Last Will and Testament of Justice - proof for all you defense attorneys that Justice is actually dead. Second I'm a gay newspaper?!? Somehow, I think I'm going to fail rather miserably in that function. Third, I'm a baliff. And, I'm supposed to combine all three disparate elements in order to "exercise sound discretion." Might be difficult.

(Sorry, the paragraphs above are all puff; I couldn't resist poking at them.)
(c) The duty of the prosecutor is to seek justice, not merely to convict.
So, I'm not supposed to get someone put in jail for 93 years for jaywalking? BTW, I think this is what I was looking for yesterday when I was looking in the Rule that has specifically been adopted for prosecutors in Virginia. However, I'm fairly certain that this document has not been adopted by Virginia.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
That's just a wee bit broad. As I read that it could mean I have a duty to try to get all the minor, procedural hiccups written into the statutes by the General Assembly back in front of the General Assembly for correction (it could happen). It could also mean that if my personal belief is that all felonies should once again be punished by death, a la Tom, that I should be doing everything in my power to correct that injustice in the substantive law. "Errors" in substantive law are a matter of perspective and the formation of substantive areas of criminal law is a function of the legislature, not the prosecutor.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
I'm a little disturbed by the "professional traditions" part of this. Professional traditions are going to vary greatly from jurisdiction to jurisdiction. Things which are done in Pitcairn County as a matter of regular practice can be entirely different from those in Liberty City. There is no unified "professional tradition." It's reminiscent of the old thought that the "common law" across the various States was building to one point of congruence. It didn't happen. And when you start relying on the thought that congruence exists when it doesn't you then have to decide who's tradition is superior to others or if they are all equal. Just stick to the law and ethics rules.

As well, I'm not sure what this advisory council is. I'm pretty sure we don't have one of those for prosecutors in Virginia.

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