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Proportionality as an Ethical Precept for Prosecutors in their Investigative Role

Fordham Law Review, Vol. 68, December 1999

Posted: 11 Jan 2000  

Rory K. Little

University of California Hastings College of the Law

Abstract

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

Little, Rory K., Proportionality as an Ethical Precept for Prosecutors in their Investigative Role. Fordham Law Review, Vol. 68, December 1999. Available at SSRN: https://ssrn.com/abstract=199949

Rory K. Little (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
Room 329
San Francisco, CA 94102
United States
415-565-4669 (Phone)
415-565-4865 (Fax)

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