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

Adam M. Gershowitz

William & Mary Law School

Geoffrey S. Corn

South Texas College of Law

Date Written: September 20, 2009

Abstract

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

Gershowitz, Adam M. and Corn, Geoffrey S., Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct (September 20, 2009). Berkeley Journal of Criminal Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1476107

Adam M. Gershowitz

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Geoffrey S. Corn (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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