Unusual (and Unconstitutional?) Prosecutorial
Models and a Recommendation for Reform
MARYANNE MAGNIER*
INTRODUCTION
While there has been a renewed spotlight in recent years on the disturbingly
close relationship between prosecutors and law enforcement, there has been very
little attention paid to unorthodox prosecutorial models.
1
Even with standard
practices, prosecutors and police officers rely on each other heavily for informa-
tion and access.
2
The Prosecutor-Police Relationship: Promoting Accountability and Building Public Confidence,
NAACP LEGAL DEF. FUND: VOTING FOR JUST., https://votingforjustice.org/resource/policeprosecutorrelationship/
#:�:text=Prosecutors%20and%20police%20are%20interdependent,police%20for%20misconduct%20and%
20violence [https://perma.cc/7HSV-2L8D] (last visited Apr. 26, 2021).
Without law enforcement, prosecutors would not be able to do
their jobs. Prosecutors depend on police investigations, evidence, and officers
appearing in court as witnesses. This heavy reliance on the police makes prosecu-
tors reluctant to charge officers when they break the law.
3
Consequently, these
conversations occasionally arise in public debate in cases of police brutality
which garner a large amount of media coverage. But even when the officers them-
selves are not violating the law, the close police-prosecutor relationship creates
an inherent conflict of interest.
4
This “tag-team” approach means police have a
“dog in the fight” when it comes to prosecutions, potentially inhibiting their abil-
ity to conduct independent investigations.
5
Worse still, some jurisdictions have
institutionalized police-prosecutor cooperation by allowing for joint police-prose-
cutorial units or even by collapsing the two roles, allowing police officers them-
selves to prosecute low-level crimes.
6
Adam H. Johnson, Julia Rock & Harry August, When Police Officers Double as Prosecutors, THE
APPEAL (Oct. 31, 2019), https://theappeal.org/the-appeal-podcast-when-police-ofcers-double-as-prosecutors/
[https://perma.cc/NEM6-YZKE].
The result is a likely unconstitutional
violation of defendants ’due process rights under the Fifth and Fourteenth
Amendments and further incentivizes prosecutors to violate Rule 3.8(a) of the
American Bar Association (ABA) Model Rule of Professional Conduct, which
* J.D., Georgetown University Law Center (expected May 2023); B.A., Mount Holyoke College (2018).
© 2022, Maryanne Magnier.
1. The renewed spotlight refers to more public attention in the media.
2.
3. Id.
4. See Alexandra Hodson, The American Injustice System: The Inherent Conflict of Interest in Police-
Prosecutor Relationships & How Immunity Lets Them ‘Get Away with Murder,’ 54 IDAHO L. REV. 563, 563
(2018).
5. Id. at 26.
6.
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