Regulation of Prosecutors

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Long title: 
Regulation of U.S. Prosecutors in the Information Age
Author(s): 
Green, Bruce and Yaroshefsky, Ellen
Author(s)' contact information: 
Fordham University, USA Cardozo University, New York, USA
Conference title: 
International Legal Ethics Conference VI
Conference location: 
City University London
Country: 
USA
Year: 
2014

The U.S. Supreme Court has recognized that, as lawyers, prosecutors are subject to disciplinary regulation by the bars and state judiciaries. Nonetheless, U.S. prosecutors’ offices have maintained that they should be principally responsible for regulating their prosecutors’ professional conduct. Prosecutors have been largely successful in resisting efforts to expand lawyer codes to regulate their conduct more stringently and in discouraging disciplinary authorities from pursuing prosecutorial misconduct more aggressively.
This paper will argue that, because of the proliferation of information in the internet era, disciplinary authorities are becoming less deferential in small ways that may portend bigger changes. Among the reasons are, first, that prosecutors’ misconduct now tends to be more visible and widely publicized and, indeed, is increasingly likely to be attributable to misuse of public media. Second, examples of misconduct that would once have been considered individual and aberrational – e.g., prosecutors’ suppression of evidence – are now being aggregated by defense lawyers and public critics and put into a pattern. Third, the regulatory inadequacy of both prosecutors’ offices and disciplinary agencies is becoming more demonstrable, as prosecutors whose wrongdoing is exposed in the course of criminal cases are seen to escape punishment. Fourth, the cost of prosecutorial misconduct has also become more evident as the media publicizes stories of exonerated defendants whose wrongful convictions have been traced to prosecutorial wrongdoing. All of this has led to increased pressure on disciplinary authorities to regulate prosecutors more seriously and emboldened these authorities to do so, and there is potential for them to play a more expansive regulatory role in the future.

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