Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process for making these discretionary decisions. Finally, fiduciary theory offers some insight into prosecutorial regulation by clarifying that both accountability and independence are aimed at aligning prosecutors’ interest with that of the public. This, in turn, leads to the conclusion that proper regulation should aim to maximize both and helps identify when one might be more beneficial than the other.
Green, Bruce A. and Roiphe, Rebecca, "A Fiduciary Theory of Prosecution" (2020). Articles & Chapters. 1380.
Criminal Law Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons
American University Law Review, Vol. 69, Issue 3 (February 2020), pp. 805-862