Document Type

Article

Publication Title

Criminal Justice

Publication Date

Winter 1986

Abstract

Virtually all authorities agree that the public prosecutor should be held to different standards than defense attorneys. Since those dual standards derive from the significantly different role and functions served by each, the prosecutor's obligations are not, as is sometimes said, "higher" than the defense lawyer's they are simply different.

The differences in role and function are clear. The defense lawyer represents individuals whose rights are guaranteed by the Constitution. The accused, not the state, has a Sixth Amendment right to effective assistance of counsel, a Fifth Amendment privilege against self-incrimination, and a First Amendment right to freedom of speech. The prosecutor, on the other hand, acts in the name of the government, with all its majesty and power. Con-duct that may be tolerable on the part of private individuals may be reprehensible when done under color of law, on behalf of the nation or state. The prosecutor also has unique powers of discretion, requiring special ethical rules to guard against abuse.

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