A Fiduciary Theory of Prosecution

58 Pages Posted: 11 Feb 2020

See all articles by Rebecca Roiphe

Rebecca Roiphe

New York Law School

Bruce A. Green

Fordham University School of Law

Date Written: January 31, 2020


Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process for making these discretionary decisions. Finally, fiduciary theory offers some insight into prosecutorial regulation by clarifying that both accountability and independence are aimed at aligning prosecutors’ interest with that of the public. This, in turn, leads to the conclusion that proper regulation should aim to maximize both and helps identify when one might be more beneficial than the other.

Keywords: prosecution, criminal law, legal ethics, legal profession, fiduciary theory, fiduciary law

Suggested Citation

Roiphe, Rebecca and Green, Bruce A., A Fiduciary Theory of Prosecution (January 31, 2020). American University Law Review, Vol. 69, 2020, Available at SSRN: https://ssrn.com/abstract=3529379

Rebecca Roiphe (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2804 (Phone)

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

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