Hofstra Law Review


In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state. This article questions whether prosecutors can function as “ministers of justice” within the context of a one-sided proceeding where defendants appear without counsel. The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney. The article demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings. In fact, the article argues that defendants would likely be better off if prosecutors were ethically barred from participating in bail hearings unless defense counsel is also provided.