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Vanderbilt Law Review

First Page

45

Abstract

Codes of professional responsibility take a very different approach to civil and criminal trials. In civil litigation, the codes presume that good outcomes result when lawyers represent clients aggressively. In criminal cases, the codes do not rely as fully on competitive lawyering. They treat prosecutors as advocates, but also as "ministers" having an ethical duty to "do justice."

Although the special prosecutorial duty is worded so vaguely that it obviously requires further explanation, the codes provide remarkably little guidance on its meaning. In effect, code drafters have delegated to prosecutors the task of resolving the special ethical issues prosecutors face at every stage of trial. Is a prosecutor free to seek a jury biased against the defendant? If a prosecutor becomes convinced at trial that defense counsel is overmatched because of limited resources, what are the prosecutor's options? Should she help a defendant whose law- yer is incompetent? What should she do if she believes the judge incorrectly has restricted counsel's ability to present a defense? In her own presentation, may she legitimately invite the jurors to draw false inferences from the facts? How emotional a summation may she make in her effort to sway the jury toward conviction?

The interpretive literature is no more helpful than the codes in resolving these and other ethical trial issues raised by the "do justice" admonition. Scholars have focused exclusively on constitutional requirements and on issues relating to prosecutorial policy at the pretrial and sentencing stages. Moreover, judges seem intent on limiting their own role in defining appropriate trial conduct by prosecutors. Courts have declined to strengthen legal and constitutional controls, based in part on the belief that independent professional regulation best constrains prosecutorial behavior.

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