Volume 35

Unusual (and Unconstitutional?) Prosecutorial Models and a Recommendation for Reform

by Maryanne Magnier

While there has been a renewed spotlight in recent years on the disturbingly close relationship between prosecutors and law enforcement, there has been very little attention paid to unorthodox prosecutorial models. Even with standard practices, prosecutors and police officers rely on each other heavily for information and access. Without law enforcement, prosecutors would not be able to do their jobs. Prosecutors depend on police investigations, evidence, and officers appearing in court as witnesses. This heavy reliance on the police makes prosecutors reluctant to charge officers when they break the law. Consequently, these conversations occasionally arise in public debate in cases of police brutality which garner a large amount of media coverage. But even when the officers themselves are not violating the law, the close police-prosecutor relationship creates an inherent conflict of interest. This “tag-team” approach means police have a “dog in the fight” when it comes to prosecutions, potentially inhibiting their ability to conduct independent investigations. Worse still, some jurisdictions have institutionalized police-prosecutor cooperation by allowing for joint police-prosecutorial units or even by collapsing the two roles, allowing police officers themselves to prosecute low-level crimes. The result is a likely unconstitutional violation of defendants ’due process rights under the Fifth and Fourteenth Amendments and further incentivizes prosecutors to violate Rule 3.8(a) of the American Bar Association (ABA) Model Rule of Professional Conduct, which states: “[t]he prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

These unusual prosecutorial practices foster both police and prosecutorial misconduct by skewing attorneys’ incentives and obligations. Officers have a clear incentive to commit perjury in order to obtain convictions, and then they enjoy absolute immunity in their capacity as testifying witnesses.8 In one survey, defense attorneys, judges, and prosecutors estimated that police lie in suppression hearings at least twenty to fifty percent of the time. This problem is compounded by the prosecutor-to-judge pipeline, which makes judges more likely to be sympathetic to prosecutors and law enforcement. Former prosecutors are vastly overrepresented on the bench at both federal and state levels. This contributes to a system where the odds are deeply stacked against defendants, particularly for low-level crimes and misdemeanors where people are typically low-income and do not necessarily have access to legal representation, in a system that is already built on criminalizing low-income people and people of color.

This Note examines three different types of unorthodox prosecutorial structures: private prosecutors, police-prosecutors, and joint police-prosecutorial units. This Note will first begin by laying out two different theoretical frameworks of the role of prosecutors in our justice system. Second, it will discuss private prosecutors. At least fourteen states allow for private prosecution in some capacity, whether that involves private citizens initiating the charges directly or just being involved in the actual prosecution, and at least nine states allow police officers to serve as prosecutors for low-level crimes. With this discussion it will also discuss the dangers of private prosecution. Third, it will discuss police prosecutors. Several states allow for criminal charges to be fled and/or actually prosecuted by someone other than a bar-admitted government attorney, or they have institutionalized cooperation among prosecutors and law enforcement. Next, it will discuss joint private-police prosecutions. All of these raise significant constitutional and ethical concerns. These situations deprive defendants of their due process rights and allow for serious and unavoidable conflicts of interest. In conclusion, this Note recommends that all three types be abolished immediately through congressional action


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