Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

We often exhort a prosecutor to be a “minister of justice” and to “seek justice.” What do these admonitions mean? In our last ethics column, “Are a Prosecutor’s Responsibilities “Special”?”, 20 (No. 1) CRIM. JUST. 58 (Spring 2005), we discussed whether and how prosecutors’ standards of ethical conduct differ from those governing civil litigators and criminal defense lawyers. We noted that few ethics rules specifically address prosecutors, that in most situations prosecutors are subject to precisely the same rules as other litigating lawyers, and that the differences between prosecutors’ obligations and the obligations of criminal defense lawyers and civil advocates often occur when prosecutors exercise discretion. In this column, we address the rationales for creating distinct obligations for prosecutors.
Under the adversary system, lawyers are expected to pursue their client’s interests in prevailing without concern for the fairness or accuracy of the result. A prosecutor is expected at times to step out of this conventional adversarial role and to act as a monitor both of substantive and procedural justice in ways not expected of criminal defense lawyers or civil advocates.
Compare the ethical obligations of a prosecutor with those of a civil litigator or a criminal defense lawyer when engaged in cross-examination. All lawyers, no matter the client they represent, are required by Model Rule 4.4 not to “use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” This rule applies equally to all lawyers, including prosecutors. But the ABA Criminal Justice Standards distinguish between a prosecutor and a defense lawyer when cross-examining a truthful witness. The ethical standards for the cross-examination of witnesses under the ABA Criminal Justice Standards for the Defense Function, Standard 4-7.6(b), and Standards for the Prosecution Function, Standard 3-5.7(b), state that a defense lawyer’s “belief or knowledge” or a prosecutor’s “belief” that the witness is telling the truth does not preclude cross-examination.” The Defense Function Standard stops here and provides no further limit on a defense lawyer’s cross-examination of a truthful witness. In contrast, the Prosecution Function Standard 3-5.7(b) continues that a prosecutor’s belief that the witness is telling the truth “may affect the method and scope of cross-examination” and a “prosecutor should not use the power of cross-examination to discredit or undermine a witness if the prosecutor knows the witness is testifying truthfully.”
In short, a prosecutor is prohibited from discrediting through cross-examination a witness believed to be telling the truth, while a criminal defense lawyer is not. The Criminal Justice Standards on cross-examination of a truthful witness compel the prosecutor to step outside an adversarial role of pursuing a conviction and, instead, require a prosecutor to act in a way that helps maintain the integrity of the adversarial truth- finding process.
A prosecutor’s disclosure obligations are also distinct from those of a criminal defense lawyer. Brady v. Maryland, 373 U.S. 83 (1963), and Model Rule 3.8(d), require a prosecutor to turn over exculpatory evidence and information while there is no corresponding obligation for a defense lawyer to give the prosecution inculpatory evidence and information.
What rationales drive these distinct rules for prosecutors?

Rationales for treating prosecutors differently
The government’s overarching interest in justice. A primary rationale for requiring a prosecutor at times to act differently than a defense lawyer flows from the fact that a prosecutor represents the government and not an individual client. All lawyers must under Model Rule 1.2 allow the client to determine the objectives of the representation. Usually, a client charged with a crime directs the lawyer to seek acquittal on any charges and to minimize punishment if convicted, regardless of the client’s guilt or the punishment the client may deserve. When the client is the government, determining the client’s interests is not so simple. In representing the government, a prosecutor represents all of the citizenry—including, in a sense, the accused. In this role of representing the citizenry, a prosecutor must decide what is in the public’s interest and then advance that position. In making these decisions, courts and ethics rules direct a prosecutor to act fairly and impartially, and to seek procedural as well as substantive justice for the accused. For example, in Berger v. United States, 295 U.S. 78, 88 (1935), the Supreme Court stated that the government’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger and other court decisions reflect the belief that the citizenry, therefore the government, has an overarching interest in justice.
Ethics rules also assume that a prosecutor’s special interest in justice does not end with simply convicting those legally responsible. Comment [1] to Model Rule 3.8 states that the prosecutor is not simply “an advocate” but also a “minister of justice” who has “specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”
Protecting against abuse of power. Another major rationale for requiring a prosecutor to act differently than a defense lawyer flows from the significant power a prosecutor has. A prosecutor is usually the most powerful player in the criminal justice system, deciding whom to prosecute, what crimes to charge, and greatly influencing sentencing of those found guilty. In using these powers, a prosecutor must exercise discretion. The obligations to seek both procedural as well as substantive justice for the accused serve as guideposts in exercising this power. As Comment [1] to Model Rule 3.8 states, a prosecutor has the responsibility as a “minister of justice” to protect the rights of the accused even while seeking to convict the accused. One might argue that this instructs a prosecutor to look beyond merely winning or losing a case, something not required of a defense lawyer. Thus, special obligations to seek justice by acting evenhandedly are necessary to check against potential abuse of power.
Asymmetry of resources. A third rationale for requiring a prosecutor to have different ethical obligations than a defense lawyer derives from the imbalance in resources between the government and the accused one typically finds in criminal cases. The adversary system tends to assume a rough symmetry in resources, so that each side can muster the competing evidence and arguments the judge and jury need to hear in order to do justice in the case. But the reality in many criminal cases is that criminal defendants and their lawyers lack the resources to investigate cases adequately and present relevant evidence and arguments. Placing special disclosure obligations on prosecutors and requiring them to step out of the adversarial role might be justified by a desire to help prevent asymmetry in resources from distorting the working of the adversary system.
Public confidence in the justice system. A fourth rationale that can be advanced for requiring a prosecutor to have different ethical obligations than a defense lawyer could be based on the need to reinforce public confidence in the justice system. Confidence in the justice system and public respect for the law are important in any justice system that relies in large part, as ours does, on voluntary compliance of the citizenry. Public confidence will arguably be increased if the justice system is seen as both fair and accurate. Requiring prosecutors to provide a sort of safety net against procedural unfairness and inaccuracy may increase public confidence in the criminal justice system as a whole. This respect could be eroded if prosecutors were seen as lawyers solely interested in winning even at the expense of the truth. The public might also react quite negatively to prosecutors acting in a highly adversarial way, indifferent to the fairness and accuracy of criminal convictions and punishment, such as cross-examining a truthful witness or concealing information from the accused that might be exculpatory.
Promotes open government. A fifth rationale for requiring a prosecutor to have different ethical obligations than a defense lawyer flows from the openness and transparency often associated with a democratic government. The Freedom of Information Act, open meeting laws, and the right to public trial are examples of the public’s right to know information bearing on government decisions and actions of government officials. Prosecutors are public officials, typically elected officials, and it may be argued that the public has a right to information in possession of the prosecutor in order to evaluate fully the prosecutor’s actions. This right of access to information is particularly important when one is accused of a crime. This is one reason why Brady v. Maryland as well as ethics and discovery rules require the prosecution to disclose information to the accused. Such disclosure in turn increases the chance that the information will become publicly known at a trial or sentencing hearing.
While important to the accused, Brady and other disclosure obligations give force to the public’s interest in making information in possession of the government public. In recent years, the revelation of erroneous convictions helps to illustrate the importance of the public’s right to information. The public, as well as the accused, has an interest in information and evidence that would prevent an erroneous conviction. At the trial level, the public is represented by the jury, that may only have access to exculpatory evidence in the hands of the prosecution if the prosecution has an obligation to disclose it to the accused. Thus, a prosecutor’s higher disclosure duty both promotes an open government and the public’s interests in fairness to the accused.

Risks of injustice
As we have outlined, there are a number of rationales for treating a prosecutor differently than a defense lawyer for ethics purposes. More is at risk when a prosecutor refuses to step out of the adversarial role as opposed to a defense lawyer. When a defense lawyer refuses to step out of the adversarial role, for example, by cross-examining the truthful witness, the risk is typically that a guilty person will go free. When a prosecutor refuses to step out of the adversarial role, in comparison, again by cross-examining the truthful witness, the risk may be that an innocent person will be convicted. Our system of justice does not weigh these two risks equally. The justice system is more concerned with avoiding conviction of the innocent than it is with assuring conviction of the guilty. So our comparative valuation of these risks may drive us to require the prosecutor to act differently than a defense lawyer.
Given the number of rationales for expecting more of a prosecutor, one may wonder why the ethics rules do not require more of prosecutors. There are very few additional ethical obligations for prosecutors, and where there are heightened ethical obligations they are rarely enforced by bar discipline processes. For example, studies demonstrate that prosecutors are rarely disciplined for Brady violations and reversal rather than discipline is the usual remedy for prosecutorial overreaching.

Conclusion
There are a number of rationales in favor of creating distinct ethical obligations for prosecutors. In our last column, we demonstrated that admonishments for a prosecutor to be a “minister of justice” and to “seek justice” overstate the differences between the standard of conduct for prosecutors and other lawyers. In most instances, the standard of conduct for prosecutors is identical to the standard of conduct for civil advocates and defense lawyers. When prosecutorial standards do differ, they do so typically in degree rather in kind from those of other litigating lawyers. Yet, there are some distinct differences, such as the limits on cross-examination of a truthful witness and greater disclosure obligations required by Brady and ethics rules. Where there are differences, a prosecutor is required not to undermine the truth, to accord procedural justice for the accused, and to guard against convicting the innocent. These are what it means for a prosecutor to “seek justice.”

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