“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.”

Berger v. United States, 295 U.S. 78, 88 (1935)


Prosecutors are always in the news, but rarely have we had such an intense focus on the prosecutor’s special role as during the recent coverage of North Carolina prosecutor Michael Nifong’s rape charges against members of the Duke University lacrosse team.

Prosecutors Are Special

Prosecutors are the only lawyers with their very own Rule of Professional Conduct—Prof. Cond. R. 3.8. As far as I know, they are also the only lawyers who function in a representative capacity without a true client.  Depending on how you conceptualize it, they either have themselves as a client, or they have an idea (“the State”) for a client.  Either way, there is no one, save the prosecutor herself, to direct prosecution conduct in the way clients normally direct their lawyers.  Other lawyers risk being fired by their clients at any time.  The prosecutor is accountable to his ultimate masters, the voters, only once every four years.

The prosecutor’s special role as a minister of justice is deeply embedded in the values of our profession. Rhetorically, we all agree with Blackstone when he said “Better that ten guilty persons escape than that one innocent suffer.”  4 William Blackstone, Commentaries 358.  But do we really mean it?  We select our prosecutors in partisan elections where a premium seems to be placed on chest thumping and pledges of aggressive crime fighting.  I can’t recall a prosecutor’s successful election campaign built around a pledge of sensitivity to civil liberties and the constitutional rights of defendants.

A North Carolina Case Study

This brings us to Mr. Nifong, who is now facing disciplinary charges brought by the North Carolina Bar. Mr. Nigong brought criminal charges against several members of the Duke lacrosse team for allegedly raping a stripper who was hired to perform at a players’ party.  Eventually, a special prosecutor dropped all charges, with the extraordinary step of publicly declaring that the defendants were actually innocent of the crimes with which they were charged.

It is noteworthy that Mr. Nifong was in the midst of a re-election campaign at the time he filed the charges. Arguably, the charges were filed to politically exploit some of the social fault lines running through the Durham community: an alleged victim who was an African-American woman; defendants who were privileged, white men at a prestigious university.

Informing the Public Without Exploiting Press Coverage

Mr. Nifong was not shy about taking his case to the new media, and his press statements provided one basis for the discipline charges against him. Indiana Rule of Professional Conduct 3.6 (North Carolina’s is similar, but not identical) places limits on trial publicity that applies to all lawyers, but it imposes special limits on lawyers in criminal cases, including statements about confessions and opinions about guilt or innocence.  Of particular significance to prosecutors is the limit on publicizing that a defendant has been charged unless there is also a disclaimer that it is “merely an accusation and that the defendant is presumed innocent until proven guilty.”  Prof. Cond. R. 3.6(d)(6).  Beyond that, Prof. Cond. R. 3.8(f) tells prosecutors that, except as required by legitimate law enforcement needs, they must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

A Higher Duty To Be Fair

One would not expect a rape case in this day and age to go forward without DNA evidence, and the Duke lacrosse case was no exception. Mr. Nifong hired a DNA expert and, according to the bar’s disciplinary complaint, allegedly coached him to leave out of his report all mention of exculpatory DNA findings.  Not only is the disclosure of exculpatory evidence constitutionally required under Brady v. Maryland, 373 U.S. 83 (1963), timely disclosure of exculpatory or mitigating evidence is mandated by both the North Carolina and Indiana versions of Rule of Professional Conduct 3.8(d).

Other Special Ethical Constraints

Most lawyers are ethically constrained by Rule of Professional Conduct 3.1 from pursing a claim that is frivolous. Prosecutors must have the more substantial basis of probable cause to pursue a case.  Prof. Cond. R. 3.8(a).

Lawyers have limited duties to unrepresented third parties—mostly to refrain from giving them legal advice and to not feign neutrality. See Prof. Cond. R. 4.3.  Prosecutors have a higher duty to the unrepresented.  This includes refraining from obtaining un-counseled waivers of important legal rights.  See Prof. Cond. R. 3.8(c).

Lastly, other lawyers are generally free to pursue discovery in any potentially fruitful direction. They do not have an affirmative duty to refrain from using legitimate means of discovery to obtain information that might be protected by an evidentiary privilege.  It is the responsibility of the holder of the privilege to raise it or waive it.  But when it comes to subpoenaing other lawyers, prosecutors are different.  The prosecutor must reasonably believe that the information sought is not privileged, the evidence sought must be “essential” to the success of the investigation or prosecution, and there must be no feasible alternative way of obtaining the information.  Rule 3.8(e).

Nobody ever said life would be easy. That’s especially true for prosecutors, who constantly feel the pull between electoral success, on the one hand, and the obligation to impartially see that justice is done, on the other.  But the trump card is held by the Rules of Professional Conduct.  Prosecutorial appeasement of public clamber for vindictiveness cheapens the values we hold most dear.  It may be hard being a prosecutor, but we shouldn’t want it any other way.