The Zealous Prosecutor as Minister of Justice

As my contribution to this Memorial tribute to Professor Fred Zacharias, I have chosen to write about Fred’s 1991 article in the Vanderbilt Law Review entitled Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?. I have always seen this article as a classic, one of the finest and most important discussions of the special role of the prosecutor in the criminal justice system and of the meaning of the prosecutor’s ethical duty to “do justice.” This article is cited repeatedly for numerous points: the conception of the prosecutor’s duty not to win a case but to see that justice is done, the failure of the do-justice ethical standard to effectively regulate the behavior of prosecutors, the ability of prosecutors to exploit the gross imbalance of power in the adversary system between the prosecution and defense and the need to redress that imbalance by establishing clear ethical guidelines for prosecutors, the articulation of a methodology to structure prosecutorial trial ethics, and the need for drafters of codes of professional responsibility to write meaningful rules.