Balancing the Duty to Prosecute and the Obligation to Do Justice

Vol. 37 No. 4

The author is a former prosecutor, now with Perkins Coie LLP.
He thanks his partner, Stephanie Dunn, for her editorial assistance.

American Amanda Knox and her former boyfriend were prosecuted in Italy for the vicious and sensational murder of her English roommate. Even if the Italian prosecutor had wanted to charge Amanda with a less serious offense, he had no discretion to do so. In civil-law countries, such as Italy, prosecutorial discretion is limited and controlled by the judiciary. Prosecutors generally do not have the discretion to open an investigation, decline prosecution, or determine what, if any, charges to file or drop. There is, rather, a constitutional principle of mandatory prosecution. Thus, if there is sufficient evidence to bring a case, a prosecutor must seek charges, and all such decisions are within the sole province of the judiciary.

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