Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also discusses the prosecutor's affirmative duty to assist the defense in discovering the truth through discovery rules and by conferring immunity on potentially truthful defense witnesses.
Part II of this Article discusses the source and nature of the prosecutor's duty to prejudge the truth. As explained in Part II, this duty is based on various legal, ethical, and practical considerations that require a prosecutor, in effect, to preempt the jury's determination by making an informal adjudication of the defendant's guilt and the credibility of witnesses. Part II also discusses the methodology used by a prosecutor in making this prejudgment — by examining facts skeptically, rigorously testing the hypothesis of guilt, and having the moral courage to decline prosecution when not personally convinced of the defendant's guilt. Finally, Part II describes how an aggressive commitment to truth, rather than an agnostic approach to truth, will create a prosecutorial culture that is more compatible with the prosecutor's role as a minister of justice.
Part III of the Article concludes that a prosecutor has both a negative duty to refrain from conduct that impedes the search for truth and an affirmative duty to protect and promote the search for truth. A prosecutor who proceeds with a case without being personally convinced of the defendant's guilt violates these duties and creates an unacceptable risk that an innocent person will be convicted.
Bennett L. Gershman, The Prosecutor's Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001), available at http://digitalcommons.pace.edu/lawfaculty/128/.