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Napolitano: The Prosecutor’s Dilemma

Andrew P. Napolitano, “The Prosecutor’s Dilemma” (October 8, 2026) (Washington Times version)

The Prosecutor’s Dilemma

By Andrew P. Napolitano
October 8, 2026

“That it is better 100 guilty persons should escape, than that one innocent person should suffer.” — Benjamin Franklin (1706-1790)

The hardest decision a government prosecutor may ever face is also one of the most important tests of the rule of law: What do you do when you believe a crime occurred, and you believe you know who committed it, but you do not believe you can prove guilt beyond a reasonable doubt and to a moral certainty?

The temptation is obvious. A prosecutor is a public official. The alleged victim wants justice. The public demands accountability. The alleged offenders appear unsympathetic. The known facts produce moral outrage. Yet none of those considerations changes the prosecutor’s constitutional obligation.

A criminal prosecution is not a referendum on whether something terrible probably happened. It is an attempt to prove, in a courtroom, that a particular defendant committed a particular crime beyond a reasonable doubt and to a moral certainty.

The recently renewed investigation into an alleged sexual assault involving seven Cornell University fraternity members illustrates this dilemma. The woman has alleged that she was sexually assaulted by multiple men at a Chi Phi fraternity house in October 2024. The case initially was not prosecuted, but it has now been reopened and reassigned amid the emergence of additional information and intense public scrutiny.

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