For Legal Professionals
For Prosecutors
Resources for federal and state prosecutors covering Brady obligations, DOJ policies, charging decisions, grand jury practice, and victim rights.
Overview
Prosecutors occupy a unique position in the American legal system. Unlike other advocates, prosecutors are ministers of justice whose obligation extends beyond winning cases to ensuring that justice is served. This dual role — as both zealous advocate for the government and guardian of due process — distinguishes prosecution from all other forms of legal practice. The Supreme Court articulated this principle in Berger v. United States, 295 U.S. 78 (1935), declaring that a prosecutor's interest 'in a criminal prosecution is not that it shall win a case, but that justice shall be done.'
The duty to disclose exculpatory and impeachment evidence — established in Brady v. Maryland, 373 U.S. 83 (1963) and its progeny — is the most critical obligation unique to prosecutors. Brady requires disclosure of evidence favorable to the accused that is material to guilt or punishment, regardless of whether the defense requests it. Subsequent decisions in Giglio v. United States (1972) extended this to impeachment evidence, and Kyles v. Whitley (1995) established that the duty extends to evidence known to police investigators. Violation of Brady obligations can result in reversal of convictions, sanctions, and disciplinary action.
Prosecutorial discretion — the power to decide whom to charge, what charges to bring, and whether to offer plea agreements — is one of the most significant powers in the criminal justice system. The DOJ Justice Manual (formerly the U.S. Attorneys' Manual) provides detailed guidance on charging decisions, plea bargaining, and case priorities. Federal prosecutors must also navigate the grand jury process under Federal Rule of Criminal Procedure 6(e), comply with the Jencks Act's witness statement disclosure requirements, and uphold victims' rights under the Crime Victims' Rights Act (18 U.S.C. § 3771).
Key Rules
| Rule | Citation | Summary |
|---|---|---|
| Brady v. Maryland | 373 U.S. 83 (1963) | Requires prosecutors to disclose all evidence favorable to the defense that is material to guilt or punishment, including exculpatory and impeachment evidence. |
| Jencks Act | 18 U.S.C. § 3500 | Requires the government to produce prior statements of its witnesses after they testify on direct examination at trial. |
| DOJ Justice Manual Charging Policies | JM 9-27.000 et seq. | Establishes principles for federal prosecution including charging the most serious readily provable offense and policies on plea agreements and cooperation. |
| Crime Victims' Rights Act | 18 U.S.C. § 3771 (CVRA) | Grants crime victims the right to be reasonably heard at public proceedings, the right to confer with the prosecutor, and the right to proceedings free from unreasonable delay. |
| Grand Jury Secrecy | Fed. R. Crim. P. 6(e) | Imposes strict secrecy requirements on grand jury proceedings, prohibiting disclosure of matters occurring before the grand jury except in specified circumstances. |
| Speedy Trial Act | 18 U.S.C. §§ 3161–3174 | Requires indictment within 30 days of arrest and trial within 70 days of indictment or initial appearance, with excludable time for specified delays. |
Key Resources
DOJ Justice Manual
U.S. Department of Justice
The comprehensive internal guidance document for federal prosecutors covering all aspects of federal criminal and civil enforcement.
Visit resource →National District Attorneys Association
NDAA
The largest professional organization for prosecutors in the U.S., providing training, publications, and policy resources for state and local prosecutors.
Visit resource →ABA Criminal Justice Standards for the Prosecution Function
American Bar Association
Comprehensive standards addressing the unique ethical responsibilities of prosecutors including disclosure obligations, plea negotiations, and trial conduct.
Office for Victims of Crime
U.S. Department of Justice
Federal resources for prosecutors on implementing victims' rights under CVRA, victim notification systems, and restitution procedures.
Visit resource →Practice Checklists
Case Intake Checklist
- Review investigative reports and assess sufficiency of evidence
- Determine federal vs. state jurisdiction and venue
- Identify applicable statutes and charging options
- Assess statute of limitations issues
- Check for cooperating witnesses and informant agreements
- Evaluate need for grand jury investigation vs. criminal complaint
- Consider collateral consequences and DOJ charging policies
- Notify victims and advise of CVRA rights
Discovery Disclosure Checklist
- Identify and disclose all Brady material (exculpatory evidence)
- Identify and disclose all Giglio material (impeachment evidence)
- Produce Jencks Act material (witness prior statements)
- Disclose Rule 16 material (defendant's statements, documents, expert reports)
- Check law enforcement files for undisclosed favorable evidence
- Document all disclosures with dates and descriptions
- Establish ongoing duty to supplement as new evidence emerges
- Review co-defendant materials for cross-disclosure obligations
Trial Preparation Checklist
- Prepare witness list and coordinate testimony order
- Organize exhibits and ensure proper authentication
- Draft proposed jury instructions and verdict form
- Prepare motions in limine to exclude defense evidence
- Brief witnesses on courtroom procedures (avoid coaching)
- Prepare opening statement and closing argument outlines
- Anticipate defense theories and prepare rebuttal evidence
- Confirm compliance with all disclosure obligations
Ethics Rules
Special Responsibilities of a Prosecutor
ABA Model Rule 3.8
Requires prosecutors to refrain from prosecuting charges not supported by probable cause, make timely disclosure of exculpatory evidence, and exercise restraint in extrajudicial statements.
Brady Disclosure Obligations
Brady v. Maryland, 373 U.S. 83 (1963)
Constitutional duty to disclose evidence favorable to the accused that is material to guilt or punishment, enforceable through due process and professional discipline.
Ministerial Duty to Disclose
Giglio v. United States, 405 U.S. 150 (1972)
Extends Brady to require disclosure of evidence affecting the credibility of government witnesses, including plea deals, incentives, and prior inconsistent statements.
Candor Toward the Tribunal
ABA Model Rule 3.3
Prosecutors must not knowingly make false statements of fact or law, must disclose controlling legal authority, and must not offer false evidence.
Common Motions & Filings
Criminal Complaint
Initial charging document filed under oath establishing probable cause for arrest, typically used before grand jury indictment.
Indictment
Formal criminal charges returned by a grand jury, required for federal felony prosecutions under the Fifth Amendment.
Superseding Indictment
Amended indictment adding, removing, or modifying charges based on additional evidence or changed circumstances.
Plea Agreement
Written agreement between the government and defendant setting forth the terms of a guilty plea including charge concessions and sentencing recommendations.
Sentencing Memorandum
Government's written submission to the court advocating for a particular sentence based on guidelines calculations and § 3553(a) factors.
Victim Impact Statement
Statement from crime victims describing the impact of the offense, submitted to the court for consideration at sentencing under the CVRA.
Frequently Asked Questions
What must be disclosed under Brady v. Maryland?
Brady requires disclosure of all evidence favorable to the accused that is material to guilt or punishment. This includes exculpatory evidence (evidence suggesting innocence), impeachment evidence (evidence undermining government witness credibility, per Giglio), and evidence known to law enforcement (per Kyles v. Whitley). Materiality is assessed by whether there is a reasonable probability the result would have been different had the evidence been disclosed. The duty is ongoing throughout the case.
How does grand jury secrecy work?
Federal Rule of Criminal Procedure 6(e) imposes strict secrecy obligations on grand jury proceedings. Government attorneys, grand jurors, interpreters, court reporters, and authorized personnel may not disclose matters occurring before the grand jury except as authorized by the rule. Exceptions include disclosure to other government attorneys for law enforcement purposes, disclosure pursuant to court order, and disclosure in connection with judicial proceedings. Witnesses are generally not bound by secrecy requirements. Violations can result in contempt sanctions.
What are the DOJ's charging principles?
The DOJ Justice Manual (JM 9-27.300) directs federal prosecutors to charge the most serious readily provable offense consistent with the nature and extent of the defendant's criminal conduct. Prosecutors must consider the strength of evidence, deterrence, the defendant's culpability, cooperation, and the interests of victims. The policy emphasizes that plea agreements should reflect the seriousness of the actual criminal conduct.
Recent Developments
Recent prosecutorial developments include evolving DOJ policies on corporate criminal enforcement, updated guidance on prosecutorial discretion for marijuana offenses, the expansion of Brady training programs following high-profile wrongful convictions, and increased use of data analytics in case management. The DOJ has also issued new policies on the use of cooperating witnesses and confidential informants, and prosecutors are adapting to Supreme Court decisions on issues such as the scope of federal criminal statutes and mens rea requirements.