By Collin County Criminal Defense Lawyer Jeremy Rosenthal
A prosecutor has a statutory duty to seek justice. Unfortunately, the prosecutor — not you — is the one who gets to define what that means.
Texas Code of Criminal Procedure Section 2.01 says in relevent part, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
This statute is a crucial safeguard in the criminal justice system which should not be diminished nor ignored. This provision is highly subjective and can be very frustrating… as a defendant’s remedy for the prosecutor’s breach of this duty may not equal the great harm the prosecutor has inflicted.
The main frustration in the everyday practice of criminal defense law is that the gatekeeper of what is in “the best interest of justice” for any given situation is the prosecutor themselves. Most prosecutors take their duty very seriously. As with any given set of human beings, though, some approach it in a misguided manner and abuse their discretion whether they know it or not.
Examples of judgment calls a prosecutor must make range from interpreting whether evidence is favorable to the excused or is exculpatory (tending to prove innocence) and thus making the evidence mandatory to disclose. Other examples include whether to reduce charges in certain situations. Again, much difficulty comes from the fact that the prosecutor is engaging in an adversarial process where they, unlike the judge or jury, are not required to presume the accused as innocent. Therefore, some prosecutors, if they don’t think innocent people ever get accused, can view their duty to seek justice far more narrowly than everyone else.
Unfortunately there isn’t much of a remedy for many prosecutorial decisions, but some misconduct can result in sanctions, new trials, and even acquittals from the Courts.
Brady violations, generally referring to a failure to disclose exculpatory evidence for guilt or favorable evidence for punishment, are the main area for prosecutorial discipline. Some Brady offenses are worse than others, but in extreme cases, Courts have actually acquitted accused people due to those violations.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For any specific legal situation you should consult an attorney for advice.