Recommended Citation
Maureen A. Howard, The Asymmetry of Duty in Criminal Trial Practice, Dec. 2011 De Novo 10 (2011), https://digitalcommons.law.uw.edu/faculty-articles/525
Publication Title
De Novo
Document Type
Article
Abstract
Although the American trial system has been likened to an arena in which mental combatants fight “to the death” (the verdict), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different than that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.
A lawyer who represents an individual client is duty-bound to advance that client’s interests vigorously within the bounds of the law. A prosecutor, however, does not represent a single individual, but rather the collective good. As such, a prosecutor’s loyalties — unlike those of other lawyers — are divided. A prosecutor’s duties include insurance of procedural and substantive fairness to persons accused of crimes because, as one element of a just society, such fairness is in the interests of the collective good. Further, because the defendant is a member of the “represented” collective, a prosecutor must take the defendant’s interests into account in assessing the validity of the prosecution.