Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct
Berkeley Journal of Criminal Law, Forthcoming
50 Pages Posted: 21 Sep 2009 Last revised: 21 Aug 2012
Date Written: September 20, 2009
Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.
Keywords: prosecutor, criminal law, criminal ethics, prosecutorial ethics, legal ethics, command responsiblity, law of war, ABA model rules, professional responsibility
JEL Classification: K14, K4, K41, K49
Suggested Citation: Suggested Citation