Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible to regulate their conduct. Furthermore, the First Amendment of the U.S. Constitution protects many expressions of viewpoints, and such protections extend—albeit to a limited degree—to prosecutors, thereby giving them even more discretion in how they decide to handle their own cases. Nonetheless, the U.S. Supreme Court has not interpreted the First Amendment to protect prosecutors whose words evidently contravene the functions of the prosecutor’s office. Rather, a prosecutor may be terminated if the office finds that the prosecutor’s speech undermines the office’s interests. What the law does not address, however, is the extent to which the First Amendment protects prosecutors whose unfavorable viewpoints do not affect their individual performance within the workplace but nonetheless detract from the community’s trust in the prosecutor’s office. This Note examines the state of the First Amendment as it applies to prosecutors within the scope of their employment and utilizes the underlying principles to expand the discussion to prosecutorial speech beyond the scope of their employment. Ultimately, this Note proposes that prosecutorial speech should be regulated not only by the effect the speech has on the office’s functions but also by the adverse effect the speech has on the community’s trust in the prosecutor and the office to pursue justice in an unbiased manner.
Law; Constitutional Law; First Amendment; Criminal Law; Legal Ethics and Professional Responsibility; Law and Society; Legal Profession
A Voice for One, or a Voice for the People: Balancing Prosecutorial Speech Protections with Community trust,
86 Fordham L. Rev. 1331
Available at: https://ir.lawnet.fordham.edu/flr/vol86/iss3/12