Policing Prosecutors: What Role Can Appellate Courts Play?

Thank you for the opportunity to participate in Hofstra’s seventh legal ethics conference. I consider it a privilege to be invited. The goals of this conference are impressive and ambitious, but let me confess that mine is a frustrating topic. After some back and forth with Professor Simon, we agreed upon the topic that appears in the program: the role of appellate courts in policing prosecutorial conduct. As Professor Simon noted to me, it “probably has not gotten much attention.” He was right. Canvassing academic literature on the subject took little more than a nanosecond. And being forced, if you will, to think long and hard on this topic took me back to my days as a trial judge—and to think wistfully, even longingly, about the times when I confronted trial issues head-on. The trial court is where issues of prosecutorial misconduct really play out. As the Eleventh Circuit has so accurately put it: “On the matter of professional misconduct of prosecutors, the realities require that we defer to our colleagues on the district courts to take the lead. District courts are in a better position to ensure that a prosecutor properly fulfills the duties and obligations of his office.”

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