Reconceiving the Standard Conception of the Prosecutor's Role

Abstract

The standard conception of the prosecutor’s role requires her to seek justice, to be a “minister of justice”, who ensures that an accused receives a fair trial on the merits. This paper challenges the standard conception of the prosecutor’s role. It argues that the seek justice ethic undermines judicial decision-making about prosecutorial duties and conduct. It has no evident meaning, is internally contradictory, and incorporates concepts of morality rather than legality, such that it cannot usefully explain a lawyer’s duties within a system of law. Fundamentally, it fails to describe the work that prosecutors actually do. The paper proposes a redefined standard conception that captures the dual roles that a prosecutor plays: deciding whether and how to pursue a criminal mater, and acting as an advocate in a criminal trial.

Keywords: legal ethics, criminal law, prosecutors

JEL Classification: K14, K41, K42