69 Am. U. L. Rev. 805 (2020).

* Louis Stein Chair, Fordham University School of Law.

** Professor of Law, New York Law School.

We would like to thank the participants in the Legal Ethics and Fiduciary Theory Workshop held at the Kylemore Abbey in Ireland in June 2019 for their insights and for the opportunity to bring these two fields of inquiry together. We would also like to thank the Criminal Justice Schmooze participants for their thoughts on an earlier draft.

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process for making these discretionary decisions. Finally, fiduciary theory offers some insight into prosecutorial regulation by clarifying that both accountability and independence are aimed at aligning prosecutors’ interest with that of the public. This, in turn, leads to the conclusion that proper regulation should aim to maximize both and helps identify when one might be more beneficial than the other.