Eric S. Fish (Yale University – Yale University, Law School, Students (PhD Candidate)) has posted Prosecutorial Constitutionalism on SSRN. Here is the abstract:
As adversary lawyers, prosecutors are obligated to seek convictions. But as executive branch officials, prosecutors are obligated to interpret and apply the Constitution in good faith. These two roles are fundamentally at odds. The first requires prosecutors to interpret the Constitution strategically so as to limit defendants’ rights, while the second requires them to interpret the Constitution evenhandedly much like judges do. The crucial question is: when should prosecutors be partisan advocates, and when should they be quasi-judicial rights enforcers? This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails. This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges fail to enforce the relevant right out of concern for the limits of judicial doctrine (for example, with regard to charging decisions and plea bargaining). In such situations, prosecutors should protect defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.
But individual prosecutors can hardly be expected to decide by themselves when to switch between these two roles. Rather, prosecutors’ offices must enforce defendants’ constitutional rights by establishing internal policies that govern prosecutorial decision-making. Such policies can be found in places like the American Bar Association’s Rules of Professional Conduct, the United States Attorneys’ Manual, and the State of Washington’s Recommended Prosecution Standards. Indeed, although these documents are not presently understood as tools of constitutional enforcement, they already protect defendants’ constitutional rights above the baseline set by judges in a wide variety of areas: charging decisions, plea bargaining, grand jury proceedings, the disclosure of exculpatory evidence, exonerations, and more. Consequently, these internal systems of regulation for prosecutors function as important sites of constitutional lawmaking.
Recommended.