Proportionality as an Ethical Precept for Prosecutors in Their Investigative Role
Fordham Law Review, Vol. 68, December 1999
Posted: 11 Jan 2000
Although it is a relatively recent phenomenon, prosecutors today often take an active advisory or directive role in criminal investigations. The recent Starr investigation of President Clinton vividly brought this fact to general public attention: Judge Starr's prosecutors were criticized for allegedly overstepping some undefined investigative bounds. Yet the complained-of techniques are, in fact, not uncommon in complex or high-profile prosecutorial investigations. What seems to underlie public criticism of the Starr investigation is actually some unwritten conception of fairness or "proportionality" in criminal investigations, not specific ethical rules.
Ethical limits on prosecutorial conduct in the investigative stage are, indeed, undefined. Existing ethical authorities say virtually nothing about a prosecutor's investigatory role. Only one ABA Model Rule, 3.8, addresses prosecutors specifically, and except for a provision limiting subpoenas directed to lawyers (which looks more like lawyer self-protection than high-minded ethicism), Rule 3.8 says nothing about prosecutors as investigators. Even the more detailed ABA "Prosecution Function" standards say little about the investigatory role.
This article suggests that it is time for ethicists to examine whether specific ethical rules should be promulgated to guide ethical prosecutorial conduct in the investigative stage. To stimulate debate, the Article proposes specific language for such a rule, which would require advance proportionality analysis, as well as supervisory review, for unusual investigative steps (or for all investigatory steps in unusual or high-profile matters). The rule would also counsel prosecutors to consciously engage in proportionality analysis for all investigative steps (even routine measures taken in routine cases), and require retrospective supervisory review. Finally, the article posits that there should be an ethical duty to "seek supervision," and a duty for prosecutors' offices to provide ethics training for its attorneys on an ongoing basis.
JEL Classification: K14, K42
Suggested Citation: Suggested Citation