Confession of Error by the Solicitor General

It is the position of this Note that the Court should formulate a new policy to govern its review of confessed errors. Specifically, this Note proposes that in deciding whether to grant certiorari and whether to defer to the representations of the Solicitor General, the Supreme Court should distinguish between errors that are normally subject to judicial scrutiny (reviewable errors) and errors of prosecutorial discretion that belong to a category of executive conduct not usually reviewed by the courts. When reviewable errors are confessed, the Court should apply a standard more liberal than that of rule 19 in deciding whether certiorari should be granted. However, once the Court asserts jurisdiction, it should determine independently whether reversal is appropriate. In the context of errors of prosecutorial discretion, on the other hand, these issues must be treated differently, since it is generally agreed that the courts should not scrutinize the application of prosecutorial policies, thus making the independent review standard inappropriate. One way of avoiding the problem of reviewing such policies is always to deny certiorari to confessed prosecutorial errors. However, this Note maintains that the Court instead should always grant certiorari in such cases and, consistent with the traditional rule of avoiding scrutiny of prosecutorial policies, should defer to the Solicitor General’s determination of the appropriate disposition in all but a few extraordinary cases.