Document Type

Article

Abstract

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a defense.

Through these cases we can examine the circumstances that might lead an ethical prosecutor to institute or decline to institute criminal charges when she believes that the defendant is probably guilty, that prosecution of this particular crime would be consistent with the public interest, and that legally sufficient and admissible proof exists to convince a jury beyond a reasonable doubt of the defendant's guilt. They provide the setting in which a moral standard is proposed to guide the prosecutor's discretion.