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Question 178: Must prosecutors drop cases they believe they will not win?

I am one of several lawyers working as prosecutors in the office of the State’s Attorney. While we all agree that a case should be dropped as soon as it becomes clear that there is little or no likelihood of winning a conviction, some of us think that a prosecutor may make an exception when that might bring about a better outcome, and I’d appreciate having your thoughts on the problem.

For example, I recently handled a case against a drug dealer and was confident of getting a conviction until, checking the evidence a few days before the trial date, I found that the drugs had vanished. I could have dropped the case at once, but I decided to go through with a scheduled meeting with the accused’s counsel, Robert White. He plainly was unaware that the evidence was missing, and I said nothing about it. White offered to plead his client guilty to a reduced charge, and I agreed without arguing, though the bargain was so favorable to the accused that normally I would not have accepted it. One of my colleagues, Lisa Phan, took the position that what I had done was unethical. She cited a rule of legal ethics: “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”393 I argued that I did not violate that rule or do anything wrong.

Currently, I am dealing with a different sort of case. A prominent businessman I’ll call Baxter offered an exotic dancer a tip of one hundred dollars if she would have intercourse with him. She had performed at an office party and returned afterwards to pick up her wristwatch, which she had left in the restroom. She refused Baxter’s proposition, but he would not take no for an answer. Within thirty minutes she filed a complaint of rape against him and checked in at a nearby hospital emergency room where the physical evidence was secured. Baxter stopped at a bar on the way home, and, with unusual efficiency, the police arrived there before he did. They were about to ask him to get into their squad car when a detective lieutenant arrived, told Baxter he would not be arrested if he could explain what had happened, and questioned him. Baxter admitted having intercourse with the woman and, when asked about her demand that he leave her alone, merely offered the usual lame excuses: “She said ‘Leave me alone,’ but didn’t mean it”; she is “just a whore” who was “asking for it”; and so forth.

That initial statement was taped and is definitely incriminating. Unfortunately, it also is of limited worth; it would not be admitted as a confession because the officers who arrived first had not read Baxter his rights, and the detective lieutenant, assuming they had, also neglected to do it. And, of course, when Baxter reached the police station, he called his lawyer and from then on insisted that, after he had intercourse with the woman with her full cooperation, she demanded a thousand dollars and threatened to go to the police, and he told her to go right ahead. The woman denies Baxter’s accusation and has added to her initial report without changing it. She is a good student who works as a dancer for her college expenses. She says she is often propositioned and always refuses, and I believe her.

With the physical evidence and the victim’s testimony, I can make a prima facie case. But investigation has failed to turn up any witness or other supporting evidence. In the end, a conviction will depend on her word, and I am virtually certain that at least one member of any jury I can get will not believe her, because Baxter is a respected member of this community with a previously unblemished record. His lawyers, of course, know this and refuse to plea bargain. Either I let this rapist walk away untouched or go to trial without any expectation of winning. I am inclined to the latter. The trial’s trouble and embarrassment will be at least something of the punishment this man deserves and will serve as a deterrent to others. Phan, who disagreed with me about the other case, agrees with me about this one, but one of our male colleagues dismissed our view as feminist crusading and said it is wrong to take this case to trial.


The plea-bargaining case calls for the application of norms regarding truthfulness. The questioner perhaps deceptively indicated readiness to go to trial or, at least, fell short of appropriate candor in dealing with the defense attorney. The case of the businessman accused of rape calls for the derivation of a norm. Going to trial would abuse the legal process by using criminal proceedings as punishment and deterrence in the absence of conviction; and would impose unfairly on many of those affected, not least the victim of the crime. So, the prosecutor should not go to trial in this case. Still, under certain conditions a prosecutor may proceed with a case in which a conviction is quite unlikely.

The reply could be along the following lines:

In the first case, in which you accepted the plea of a drug dealer to a reduced charge, you may have assured Robert White, explicitly or implicitly, that you were ready for trial after you discovered the evidence was missing. If so, since in fact you could not proceed without the evidence necessary to make a case, you misled him, and the plea bargain was vitiated by that deception. Even if you did not give White any such assurance and his assumption that the incriminating evidence would be available was based only on your previous representation or that of someone else representing the state rather than, say, his client’s own information, your silence, though not deceptive, was hardly candid. Arguably, such a lack of candor would have been unfair to White. More plausibly, in my judgment, it would at least have been a failure to meet proper standards of professional conduct, because prosecutors and defense counsel, though required to act as adversaries by the legal system, should cooperate in pursuing the system’s overarching purpose: justice based on truth.

Still, I do not think what you did violated the rule requiring “timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” While the information about the missing evidence would have been favorable to the accused, the rule simply was not relevant, since the fact that the drugs had vanished neither negated the accused’s guilt nor mitigated his offense, but only rendered it impossible to prosecute the case. Indeed, the accused’s acceptance of the plea bargain was an admission of his guilt at least in respect to the lesser offense.

In asking about this case, you take for granted the moral acceptability of plea bargaining as a method of settling criminal cases, but, as I am sure you know, some critics regard it as generally unfair in practice if not inherently unjust.394 I do not think plea bargaining necessarily is unjust, and I do not know enough about how it is done in various places to judge whether it is generally unfair. It is not difficult, however, to see two respects in which it might easily involve serious abuses.

First, where there is significant but inconclusive evidence that someone has committed a serious crime (for example, a third offense of drug dealing), a prosecutor who thinks the accused more likely guilty than not may be tempted to try to induce a possibly innocent person to plead guilty to a minor charge (for example, unlawful possession) to avoid the risk of being convicted of the serious offense. This sometimes has the bad result that innocent people both lie and are wrongly convicted. To forestall this injustice, prosecutors should not bargain for a guilty plea to any serious crime unless certain beyond reasonable doubt that the accused really is guilty at least of the offense to which he or she will plead guilty.

Second, in cases in which both the prosecutor and the accused’s counsel believe that the accused has committed a certain crime (for example, a third offense of drug dealing, conviction for which would result in a lengthy, mandatory prison term), both sides for the sake of convenience might be tempted to agree on a plea to an offense which the accused did not commit but which will result in a mutually acceptable penalty (say, selling drug paraphernalia, conviction for which will result in a brief term). Such an agreement would be seriously immoral, since it would be deliberate cooperation in abusing criminal process. Moreover, carrying out the agreement would involve lying and inducing the accused to lie in a grave matter—stating in a proceeding of public record that the accused is guilty of something other than any offense he or she committed.

In the case of Baxter, the businessman accused of rape, I agree with your colleague who holds that it would be wrong to go to trial. Indeed, I believe there are at least two distinct though closely related reasons why it would be wrong.

First, if you go to trial without any expectation of winning, you will impose unfair burdens on many persons involved. Some other case more worthy of trial probably will be displaced; the time and work of the judge, the jury, and others will be wasted; witnesses will be inconvenienced. Among the witnesses, the alleged victim, even if she is eager to have Baxter tried, is likely to suffer most. She will be embarrassed and subjected to severe stress; and, if the outcome is as you expect, many people will mistakenly assume her allegations have been disproved and draw the conclusion that she lied.

Second, though the purposes of criminal process include punishment and deterrence, those goals can be achieved rightly only on the basis of a defendant’s conviction. The requirement of conviction as the basis for punishment specifies the prosecutor’s role in the criminal process. But your purpose in prosecuting Baxter would be to achieve those goals by the proceedings themselves without a conviction. You have no right to use the criminal process in that way—not even to bring about what you believe a better state of affairs. So, using the trial as Baxter’s punishment and as deterrence to others would be abusing legal process and betraying your office.

In view of these reasons why it would be wrong to go to trial, I think that, if you reflect on your own motives and are honest with yourself, you will find that only your strong feelings are tempting you to do this. While you might rationalize the project as implementing your commitment to justice, it really would serve something akin to a thirst for revenge. But the Lord says: “Vengeance is mine, I will repay” (Rom 12.19). Instead of surrendering to the temptation to play God, you should hope he will do justice when he brings all humankind to judgment. And you should bear in mind that in due time you, too, will face that judgment.

Does this mean a prosecutor should never go to trial with a case in which a conviction is quite unlikely? No. A prosecutor may proceed provided two conditions are fulfilled: (1) he or she reasonably expects significant benefits for the common good that warrant the effort even though it is unlikely to succeed, and (2) he or she has no reasonable ground to doubt that, if a conviction were obtained, the admissible evidence would justify it. For example, a prosecutor might justifiably go to trial with a case against the leader of a criminal syndicate while expecting that jury tampering or intimidation of witnesses would lead to an acquittal. How would such a prosecution contribute to the common good? A conviction might be so great a public benefit that even a remote chance of it happening would warrant the effort. Moreover, going to trial might offer legitimate, secondary benefits, such as the opportunity to catch those using the expected, illicit tactics, or the arousing of public concern and official efforts to deal more effectively with the syndicate.

393. American Bar Association, Model Rules of Professional Conduct (1993), Rule 3.8 (d), “Special Responsibilities of a Prosecutor.”

394. See, e.g., David Lynch, “The Impropriety of Plea Agreements: A Tale of Two Counties,” Law and Social Inquiry, 19 (1994): 115–33. Lynch describes several wrongs, including the two I shall discuss, that are sometimes, and perhaps often, involved in plea bargaining.