37 Pages Posted: 3 Mar 2013
Date Written: March 1, 2013
A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."
The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, and therefore must balance twin goals of efficiency and success. Finally, as a policymaker, she must make choices concerning both what laws to enforce and how to enforce them. Her power to make those choices is almost unfettered.
A thorough analysis of this difficult mixture of roles, responsibilities, and skills would be quite valuable. Such a general text on "The Prosecution Function" would assist in the training of new prosecutors and increase recognition of the prosecutorial perspective by the legal profession and the public.
Hoping for such an examination, one approaches "The Prosecution Function" by David M. Nissman and Ed Hagen with both expectation and concern. Will the two assistant district attorneys turned authors explore the special obligations and attitudes of the prosecutor? Will they allow their biases to taint their analysis? Will they reveal the broad scope and nature of the prosecution function? Will they lead the reader to see the need for better training and for increased reflection about the prosecutor? Nissman and Hagen's text provides responses to these questions that highlight the problems of becoming and being a prosecutor. Most lawyers, including judges and prosecutors, define the prosecutorial role narrowly and analyze it in terms of the day-to-day courtroom combat. The public perceives the prosecutor as its legal representative in the "war against crime" and seldom, if ever, goes beyond that vision to look at her role as part of a larger and extremely troubled justice system. Students and new prosecutors, in turn, absorb these perspectives and seek training as "courtroom torpedoes," fighting to win a war against wrongdoers.
This review essay first presents Nissman and Hagen's view of the prosecutorial world as expressed in their text. Their view is limited in that it focuses on the local district attorney in the courtroom. The second section of this essay considers the extent to which Nissman and Hagen succeed in detailing and exploring that circumscribed perspective. This reviewer concludes that, while the text gives helpful guidance on selected prosecutorial functions and techniques, it is deficient in that it chooses too few areas of courtroom activity for analysis, and fails to describe the environment in which a prosecutor works. Moreover, the text misses an opportunity to convey to a young prosecutor the need for ethical sensitivity in his day-to-day actions.
This essay then critiques the authors' premise that a "clinical law" teaching text, or a "how to" book for students and new prosecutors should not delve into matters of policy. As this essay demonstrates, the authors' view is misdirected. Clinical and other students and young prosecutors could use a more thorough text in order to put the prosecutor's quasi-judicial role in its proper context.
Finally, this essay suggests the need for a broader prosecutorial sourcebook. The essay offers a proposed format that will increase the value of such a book to students, attorneys, and interested citizens.
Keywords: prosecutor, litigation, criminal law, criminal procedure
JEL Classification: K14
Suggested Citation: Suggested Citation
Belsky, Martin H., Review Essay on Becoming and Being a Prosecutor (March 1, 2013). Northwestern University Law Review, Vol. 78, No. 6, 1984. Available at SSRN: https://ssrn.com/abstract=2227035