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The prosecutor
is the central
figure in the
administration
of criminal
justice. As the
leader of law
enforcement in
the community,
the prosecutor
has the
obligation to
participate
actively in
marshalling
society’s
resources
against the
threat of crime.
But the basic
duty of the
prosecutor is to
seek justice,
not merely to
convict. It is
incumbent upon
the prosecutor
to ensure that
guilt shall not
escape and
innocence not
suffer. The law
affords the
prosecutor broad
discretion in
making charging
decisions. A
prosecutor may
consider a wide
range of factors
when making
charging
decisions, for
instance, the
cost of
prosecution to
the criminal
justice system
and the need to
bargain in
exchange for a
defendant’s
cooperation. The
law and
prosecutors’
ethical code,
however, require
that the
prosecutor not
bring
prosecutions
without
sufficient
evidence or
bring
prosecutions for
the purpose of
seeking
political or
personal
advantage. While
most prosecutors
do excellent
work in
performing their
duties, there is
no lack of
stories about
prosecutors’
abusive use of
discretion that
resulted in
wrongful
convictions.
More than 60
years ago, then
Attorney General
and later U.S.
Supreme Court
Justice Robert
Jackson
described the
prosecutor as
having “more
control over
life, liberty,
and reputation
than any other
person in
America.” This
is so because
the prosecutor
stands a fair
chance of
finding at least
a technical
violation of
some act on the
part of almost
anyone. The
broad discretion
in the hands of
the prosecutor
when properly
exercised is a
sharp sword to
attack crime;
but when
improperly
exercised, it
may turn into a
weapon to bring
ruin to people’s
life and
reputation. In
this
presentation,
Dr. Yue Ma will
discuss
prosecutor’s
broad and
essentially
uncontrolled
discretion and
issues related
to proper versus
improper
exercise of
prosecutorial
discretion.
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