This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The Article demonstrates that, standing alone, the notion of prosecutorial neutrality is unenlightening because the term potentially encompasses a series of norms that are uncertain in meaning. Commentators need to be more precise about what they expect of prosecutors and how particular prosecutors have fallen short of expectations. Yet the Article also concludes that the alternative conceptions of prosecutorial neutrality share a valid core premise: that prosecutors should make decisions based on articulable principles or sub-principles that command broad societal acceptance. This insight poses a challenge, for prosecutors have never, either individually or collectively, undertaken the task of identifying workable norms for the array of discretionary decisions that their offices make each day.
Ethics and Professional Responsibility | Jurisprudence | Legal Profession | Public Law and Legal Theory
Date of this Version
Fred C. Zacharias and Bruce A. Green, "Prosecutorial Neutrality" (September 2004). University of San Diego Public Law and Legal Theory Research Paper Series. Working Paper 25.