Vanderbilt Law Review

Article Title

The Role of Prosecutors in Serving Justice After Convictions


It is an old saw that prosecutors have both an ethical and a legal obligation to "do justice." The contours of that obligation, however, are not well defined. This Article addresses one particularly neglected aspect of the obligation: prosecutors' ethical duty to serve justice after convictions are complete.

Prosecutorial justice issues seem to arise less frequently after conviction than at trial. Prosecutorial discretion is at its height in the postconviction context because legislators and professional code drafters have not focused on postconviction issues. Freed from binding legal constraints, prosecutors have avoided deep consideration of how their general obligation to serve justice might apply. Once defendants have been found guilty beyond a reasonable doubt, prosecutors' natural inclination in balancing the equities has been to sidestep defense-oriented actions.

Identifying and analyzing the obligation to serve justice after convictions is important precisely because so little attention has been paid to it. The American Bar Association's Standards for Criminal Prosecutions, for example, address prosecutorial conduct at all stages through sentencing, but then stop. Although the Standards are designed to flesh out prosecutors' ethical obligations in more detail than the model codes, they fail to provide guidance in the very context in which prosecutors most need it.

There are at least three reasons why prosecutors are ill- equipped to analyze post-trial obligations on their own. First, as already suggested, there is little law on the subject. Few statutory requirements for prosecutorial postconviction conduct exist. Ordinarily, the existence of a fair trial and appellate system will satisfy constitutional due process requirements. Only rarely have judicial decisions focused on general postconviction duties, so treatises on prosecutorial conduct also have tended to ignore them. Thus, from the outset, prosecutors are left entirely to personal resources in defining their post-trial role.