Robert Jackson said it in 1940: second only to the military, prosecutors have more power to destroy people's lives than anyone in government. The ethics rules set the floor for using that power at probable cause, a standard no serious office actually charges on. Everything above that floor, when to charge, what to charge, whether to bring a case to a grand jury as an advocate or a neutral, when to turn over evidence, and what to say to the press, is discretion. The system, as one of our guests puts it, "comes down to this: we have to trust these people."
In this TalksOnLaw interview, Joel Cohen speaks with two former prosecutors who are now leading scholars of prosecutorial ethics: Bruce Green, the Louis Stein Chair at Fordham Law School and Director of its Stein Center for Law and Ethics, and Rebecca Roiphe, the Joseph Solomon Distinguished Professor of Law at New York Law School, about how charging decisions get made and what rules constrain them.
Charging and Declining
Green explains that Model Rule 3.8 requires only probable cause, while Roiphe describes how the Manhattan District Attorney, dismissing the Dominique Strauss-Kahn case, announced that his office would not proceed on a felony unless it was itself convinced beyond a reasonable doubt. The two discuss why federal conviction rates hover above 90 percent, the pressure that severe federal sentences put on pleas, how a line prosecutor's charging decision moves up the chain in a high-profile matter, the Justice Department's policy of charging the most serious readily provable offense and its unintended consequences for the federal prison population, and the quiet role of resources and the investigating agency in deciding who gets charged at all.
Grand Juries, Celebrity, and Disclosure
Using the Ferguson grand jury that declined to indict Darren Wilson, they debate whether a prosecutor can ever make a "neutral" presentation and whether a prosecutor who does not want to charge should simply say so. They consider what changes when a defendant is famous, from the deterrence "bang for the buck" to the temptation to cut corners, and they disagree about whether the spotlight breeds disclosure violations, with the collapsed prosecution of Senator Ted Stevens as the cautionary case. Green lays out the gap between the constitutional Brady standard, which reaches only "material" evidence, and the broader ethical duty under Rule 3.8(d), and the timing games that follow; Roiphe's old bureau chief had a simpler rule: give it over quickly.
Overcharging, Publicity, and Doing It Right
The conversation turns to overcharging as plea leverage, to the racial and class disparities that enter at the charging stage, and to trial publicity under Rules 3.6 and 3.8(f), with examples from the Trayvon Martin prosecutor's "I pray with the family" to Preet Bharara's remarks in the Sheldon Silver case, which a federal judge found crossed the line without dismissing the indictment. Green notes that even drafting an indictment is often done "with the media in mind." They close with prosecutors who exercised discretion well, including the Manhattan assistant who effectively threw a post-conviction hearing he believed the office should lose, and the ABA's 2008 addition of post-conviction duties to Rule 3.8.
What to Know Now
Several of the cases discussed have run their course. Sheldon Silver's 2015 conviction was reversed, he was reconvicted in 2018, and he died in prison in 2022; Preet Bharara was removed as U.S. Attorney in 2017. The Justice Department's charging policy has swung with each administration; in February 2025 Attorney General Bondi again directed federal prosecutors to charge the most serious, readily provable offense. New York's 2020 discovery reform (Criminal Procedure Law article 245) now requires prosecutors to disclose most evidence automatically and early, changing the timing calculus Green describes. Rule 3.8(g) and (h), the post-conviction duties adopted by the ABA in 2008, are now law in New York and many other states.
The questions of independence and politics that the professors raise have become the defining prosecutorial-ethics issues of the 2020s. In 2025 and 2026 they have played out in the Justice Department's dismissal of the corruption case against New York Mayor Eric Adams, which prompted the resignation of the acting U.S. Attorney and five other officials and a judicial finding that the arrangement "smacks of a bargain"; in the indictments of former FBI Director James Comey and New York Attorney General Letitia James, both dismissed in November 2025 because the interim U.S. Attorney who brought them had been unlawfully appointed, a ruling now before the Fourth Circuit; in the removal of Fulton County District Attorney Fani Willis from the Georgia election case for an appearance of impropriety; and in disciplinary proceedings against former Justice Department officials in the District of Columbia. Professors Green and Roiphe revisit these themes in their later TalksOnLaw conversations, Prosecutorial Discretion – Police Killings and Sexual Abuse (2021) and Trump Trials – A Survey in Legal Ethics.
