Prosecutor

For the type of RIB boat used by the US Coastguard, see USCG Short Range Prosecutor.
For the television series, see Public Prosecutor (TV series).
Prosecutor
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An advocate in court
Occupation
Type Profession
Activity sectors Law
Description
Competencies Advocacy skills, analytical mind, sense of justice
Education required Bar Vocational Course (and possibly Common Professional Examination), Bar exam
Fields of employment Government legal service
Related jobs Barrister, solicitor, advocate, judge, magistrate

The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual suspected of breaking the law.

Contents

Common law jurisdictions

Prosecutors are typically lawyers who possess a law degree, and are recognized as legal professionals by the court in which they intend to represent the state (that is, they have been admitted to the bar).

They usually only become involved in a criminal case once a suspect has been identified and charges need to be filed. They are typically employed by an office of the government, with safeguards in place to ensure such an office can successfully pursue the prosecution of government officials. Often, multiple offices exist in a single country, especially those countries with federal governments where sovereignty has been bifurcated or devolved in some way.

Since prosecutors are backed by the power of the state, they are usually subject to special professional responsibility rules in addition to those binding all lawyers. For example, in the United States, Rule 3.8 of the ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information ... that tends to negate the guilt of the accused or mitigates the offense."

Directors of Public Prosecutions

In Australia, Canada, England and Wales, Hong Kong, Northern Ireland, Ireland and South Africa, the head of the prosecuting authority is typically known as the Director of Public Prosecutions, and is appointed, not elected. A DPP may be subject to varying degrees of control by the Attorney General, usually by a formal written directive which must be published.

In Australia, at least in the case of very serious matters, the DPP will be asked by the police, during the course of the investigation, to advise them on sufficiency of evidence, and may well be asked, if he or she thinks it proper, to prepare an application to the relevant court for search, listening device or telecommunications interception warrants.

More recent constitutions, such as South Africa's or Fiji's, tend to guarantee the independence and impartiality of the DPP.

United States

In the United States, the director of any such offices may be known by any of several names depending on the legal jurisdiction.

The terms County Attorney, Prosecuting Attorney (in Michigan, Indiana, Hawaii, and West Virginia), County Prosecutor, State Attorney, State's Attorney, State Prosecutor, Commonwealth's Attorney (in Virginia and Kentucky), District Attorney (in some states), District Attorney General (in Tennessee), Prosecuting Attorney (in Missouri counties), Attorneys General (in Rhode Island and Delaware), and City Attorney (in Missouri cities that have city prosecutors) are all titles of prosecutors in various state courts. Prosecutors are most often elected. United States Attorneys represent the federal government in federal court, in both civil and criminal cases. "Private attorneys general" represent the People of the United States of America in federal court, in both civil and criminal cases.

Canada

In Canada, public prosecutors in most provinces are called Crown Attorney or Crown Counsel. They are generally appointed by the provincial Attorney-General; unlike their United States counterparts, they are not elected and are therefore more passive than their American counterparts.

Scotland

Though Scots law is a mixed system, its civil law jurisdiction indicates its civil law heritage. Here, all prosecutions are carried out by Procurators Fiscal and Advocates Depute on behalf of the Lord Advocate, and, in theory, they can direct investigations by the police. In very serious cases, a Procurator Fiscal, Advocate Depute or even the Lord Advocate, may take charge of a police investigation. It's at the discretion of the Procurator Fiscal, Advocate Depute or Lord Advocate to take a prosecution to court, and to decide on whether or not to prosecute it under solemn procedure or summary procedure. Other remedies are open to a prosecutor in Scotland, including fiscal fines and non-court based interventions, such as rehabilitation and social work. All prosecutions are handled within the Crown Office and Procurator Fiscal Service. Procurators fiscal will usually refer cases involving minors to Children's Hearings, which are not courts of law, but a panel of lay members empowered to act in the interests of the child.

Civil law jurisdictions

Prosecutors are typically civil servants who possess a university degree in law, and additional training in the administration of justice. In some countries, such as France, they belong to the same corps of civil servants as the judges.

Belgium

In Belgium, the Senior Crown prosecutor, or Procureur du Roi / Procureur des Konings (or Procureur Général / Procureur-Generaal in appellate courts and in the Supreme Court), is supported by crown prosecutors (substituts / substituten). He opens preliminary investigations and can hold a suspect in custody for 24 hours. When necessary, a Crown prosecutor will request an examining judge (juge d'instruction/onderzoeksrechter) be appointed to lead a judicial inquest. With a judge investigating, Crown prosecutors do not conduct the interrogatories, but simply lays out the scope of the crimes which the judge and law enforcement forces investigate (la saisine). Like defense counsel, Crown prosecutors can request or suggest further investigation be carried out. The Crown prosecutor is in charge of policy decisions and may prioritize cases and procedures as need be. During a criminal trial, prosecutors must introduce and explain the case to the trier, i.e., judges or jury. They generally suggest a reasonable sentence which the court is not obligated to follow; the court may decide on a tougher or softer sentence. Crown prosecutors also have a number of administrative duties. They may advise the court during civil actions. Under Belgian law, judges and prosecutors are judicial officers with equal rank and pay. The Minister of Justice can order but not forbid a criminal investigation (droit d'injonction positive / positief injunctierecht).

Brazil

In Brazil, the public prosecutors form a body of autonomous magistrates - the Ministério Público (literally Public Ministry) - working both at the federal and state level. The procuradores da República - federal prosecutors - are divided in three ranks, according to the jurisdiction of the courts before which they officiate, thus the "procuradores da República" (federal prosecutors) officiate before single judges and lower courts, "procuradores regionais da República" (prosecutors who officiate before federal appellate courts), and "subprocuradores gerais da República" (prosecutors who officiate before the superior federal courts). The Procurador Geral da República heads the federal body, and tries cases before the Supremo Tribunal Federal (STF), Brazil's highest court, in charge of judicial review and the judgment of criminal offenses perpetrated by federal legislators, members of the cabinet, and the President of Brazil. At the state level, the career is usually divided in "promotores de Justiça substitutos" (substitute state prosecutors), "promotores de Justiça" (state prosecutors), which officiate before the lower courts, and "procuradores de Justiça" (prosecutors officiating before the states' court of appeals). There are also military prosecutors whose career, although linked to the federal prosecutors, is divided in a manner similar to state prosecutors. In Brazil the prosecutors' main job is to promote justice, as such they have the duty of not only trying criminal cases, but, if during the trial, they become convinced of a defendant's innocence, requesting the judge to acquit him. The prosecutor's office has always the last word on whether criminal offenses will or won't be charged, with the exception of those rare cases in which Brazilian law allows for private prosecution. In such cases, the prosecutor will officiate as custos legis, being responsible to ensure that justice is indeed carried out. Although empowered by law to do so, prosecutors conduct criminal investigations only in major cases, usually involving police or public officials' wrongdoings. Also, they are in charge of supervising police work and directing the police in their investigations. The power of individual prosecutors to hold criminal investigations is still controversial and, although massively supported by judges, prosecutors and the general population, it is being contested before the Supremo Tribunal Federal. Beside their criminal duties, Brazilian prosecutors are among those authorized by the Brazilian constitution to bring action against private individuals, commercial enterprises, and the federal, state and municipal governments, in the defense of minorities, the environment, consumers, and the civil society in general.

France

In France, the Office of the Prosecutor includes a Chief Prosecutor, or Procureur de la République (or procureur général in an appellate court or in the Supreme Court) assisted by deputy prosecutors (avocats généraux) and assistant prosecutors (substituts). The Chief Prosecutor generally initiates preliminary investigations and, if necessary, asks an examining judge, or juge d'instruction, be assigned to lead a formal judicial investigation. When an investigation is led by a judge, the prosecutor plays a supervisory role, defining the scope of the crimes being examined by the judge and law enforcement forces. Like defense counsel, the chief prosecutor may petition or motion for further investigation. During criminal proceedings, prosecutors are responsible for presenting the case at trial to either the Bench or jury. They generally suggest advisory sentencing guidelines, but it remains at the Court's discretion to decide its own sentence, increased or reduced as it sees fit. In addition, prosecutors have several administrative duties.

Germany

In Germany, the Staatsanwalt (literally 'state attorney') not only has the "professional responsibility" (as mentioned above) not to withhold exculpatory information, but is also required by law to actively determine such circumstances and to make them available to the defendant or his/hers defense attorney. In case he is not convinced of the defendants guilt, the state attorney is required to plead in favour of the defendant (RiStBV, No. 138/139). Prosecution is compulsory if the prosecutor has sufficient evidence to convict.[1]

Italy

In Italy, a Prosecutor's Office is composed of a Chief Prosecutor (procuratore capo) assisted by deputy prosecutors (procuratori aggiunti) and assistant prosecutors (sostituti procuratori).

Prosecutors are obligated under the Constitution to initiate investigations once they are informed of a criminal act by notitia criminis, or bill of complaint. Investigations are carried out by (judicial) police detectives, and once enough evidence has been gathered in order to proceed, the prosecution must move to initiate trial proceedings.[2] At trial, the prosecuting attorney is ceremonially referred to as Pubblico Ministero (or P.M.), i.e., Prosecution, and is probhited from withholding exculpatory evidence.

In appellate courts, the Office of the Prosecutor is called Procura generale and the Chief Prosecutor procuratore generale (PG). The Procuratore generale di Corte di cassazione is the prosecutor before the Corte di Cassazione, the supreme court of Italy.

Prosecutors in Italy are judicial officers just like judges, allowing them to act in the other's stead. A recent ruling by the Italian Constitutional Court stated that prosecutors who wish to become judges must relocate to another region and are prohibited to sit or hear trials that they themselves initiated.

Japan

In Japan, public prosecutors kensatsu-kan (検察官?) are professional officials who have considerable powers of investigation, prosecution, superintendence of criminal execution and so on. Prosecutors can direct police for investigation purposes, and sometimes investigate directly. Only prosecutors can prosecute criminals in principle, and prosecutors can decide whether to prosecute or not. High-ranking officials of the Ministry of Justice are largely prosecutors.

Poland

The highest ranking prosecutor office in Poland is the General Prosecutor. The GP has 5 deputies. Structure of Public Prosecutor in Poland is 4-level: General Prosecutor Office --> Appelation Prosecutor Offices (11) --> District Prosecutor Offices (46) --> Regional Prosecutor Offices (326).

http://www.pk.gov.pl/

Sweden

In Sweden, public prosecutors are lawyers who work out of the Swedish Office of Public Prosecutions (Åklagarmyndigheten) and direct police investigations of serious crimes. For all criminal cases, public prosecutors decide arrests and charges on behalf of the public and are the only public officers who can make such decisions. Plaintiffs also have the option of hiring their own special prosecutor (enskilt åtal). The exception is cases concerning crimes against the freedom of the press for which the Attorney General acts as the prosecuting attorney. In court, the prosecutor is not necessarily in an adversarial relationship to the defendant, but is under an obligation to investigate and present information which may incriminate or exhonerate the defendant. He is not a judicial officer, nor does he participate in the private deliberations of the court.

Public prosecutors are the only public officers who can decide to appeal cases to appellate courts (hovrätter). Otherwise, appeals are initiated by defense counsel, the plaintiff, their representatives, and other parties to the case (målsäganden). When a case has been decided by an appellate court, the right to appeal to the Supreme Court passes from the case's prosecutor to the Director of Public Prosecutions (Riksåklagaren).

Socialist law jurisdictions

A Public Procurator is an office used in Socialist judicial systems which, in some ways, corresponds to that of a public prosecutor in other legal systems, but with more far-reaching responsibilities, such as handling investigations otherwise performed by branches of the police. Conversely, the policing systems in socialist countries, such as the Militsiya of the Soviet Union, weren't aimed at fulfilling the same roles as police forces in Western democracies.

People's Republic of China

A Public Procurator is a position in the People's Republic of China, analogous to both detective and public prosecutor. Legally, they are bound by Public Procurators' Law of the People's Republic of China. According to Article 6, the functions and duties of public procurators are as follows:

  1. Supervise the enforcement of laws according to law.
  2. Public prosecution on behalf of the State.
  3. Investigate criminal cases directly accepted by the People's Procuratorates as provided by law.
  4. Other functions and duties as provided by law.

Vietnam

The Supreme People's Procuracy is the highest office of public procurators in Vietnam.

Institutional independence

In many countries, the prosecutor's administration is directly subordinate to the executive branch (e.g. the US Attorney General is a member of the President's cabinet). This relationship theoretically, and in some cases practically, leads to situations where the public accuser will either falsely charge people, or refuse to charge arrested persons at all, to keep them in protracted legal limbo, if that serves political aims. Many thinkers feel such outcomes are incompatible with basic human rights and constitutional ideals.

In a smaller number of countries, the hierarchy of prosecutors are installed with the same - such as Brazil - or nearly the same liberties which the judges traditionally enjoy. They're only responsible to the parliament, and the chief prosecutor is usually elected for a long period (seven years typically), or even a lifetime. In terms of political theory, this would mean the independent prosecution becomes the fourth column in the architecture of power separation, besides the legislative, executive and judicial branches.

In practice, such establishment often results in heated political debates, as new governments regularly accuse the reigning chief prosecutor of being "informally grateful" to the political opposition (i.e. the former parliamentary majority which elected him/her for a period extending multiple parliamentary cycles). In Hungary, the new government created the method of "private accusing" in 2003 as a response, meaning person(s) or a private entity can directly petition the courts to hold trial against someone they feel is guilty of a crime, should the prosecutor refuse to indict him/her. If a reviewing judge agrees with the private accusing, a judge selected from another court district will hold the trial and force a prosecutor to represent the charges. Such creations may hurt the scheme of separation of powers more than they remedy problems of alleged or existing bias. In Brazil, there's a similar provision which transfers the power to prosecute to the crime victim if, and only if, the prosecutor in charge of the case fails to make a decision to file or drop the charges in the deadline established by the penal procedure code. Although contested by some, this provision is often thought of as a welcomed form of public control of the prosecutor's office activities.

Private prosecution

In the early history of England, the victim of a crime and his family had the right to hire a private attorney to prosecute criminal charges against the person alleged to have injured the victim.[3] In the 18th century, prosecution of almost all criminal offenses in England was private, usually by the victim.[4] In colonial America, because of Dutch (and possibly French) practice and the expansion of the office of attorney general, public officials came to dominate the prosecution of crimes. However, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century.[5] The use of a private prosecutor was incorporated into the common law of Virginia and is still permitted there.[3] Private prosecutors were also used in North Carolina as late as 1975.[6] Private prosecution has been used in Nigeria, but the practice is being phased out.[7]

Bruce L. Benson's To Serve and Protect lauds the role of private prosecutors, often employed by prosecution associations, in serving the needs of crime victims in England. Radical libertarian theory holds that public prosecutors should not exist, but that crimes should instead be treated as civil torts. Murray Rothbard writes, "In a libertarian world, there would be no crimes against an ill-defined 'society,' and therefore no such person as a 'district attorney' who decides on a charge and then presses those charges against an alleged criminal."[8] Private prosecution has been cited as a remedy for district attorneys' unwarranted inaction.[9]

See also

References

  1. ↑ Herrmann, Joachim (1973-1974), Rule of Compulsory Prosecution and the Scope of Prosecutorial Discretion in Germany, The, 41, U. Chi. L. Rev., pp. 468, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/uclr41&section=33 
  2. ↑ Carlo Guarnieri (January 1997), The judiciary in the Italian political crisis, 20, West European Politics, pp. 157 - 175, doi:10.1080/01402389708425179, http://www.informaworld.com/smpp/content~content=a787785358&db=all 
  3. ↑ 3.0 3.1 Nichols, Matthew S. (2000-2001), No One Can Serve Two Masters: Arguments against Private Prosecutors, 13, Cap. Def. J., http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hjlpp9&section=38 
  4. ↑ Friedman, David D. (1995), Making Sense of English Law Enforcement in the Eighteenth Century, 2, U. Chi. L. Sch. Roundtable, pp. 475, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ucroun2&section=23 
  5. ↑ Robert M. Ireland (Jan., 1995). "Privately Funded Prosecution of Crime in the Nineteenth-Century United States". The American Journal of Legal History (Temple University) 39 (1): 43-58. http://www.jstor.org/stable/845749. 
  6. ↑ Sidman, Andrew (1975-1976), Outmoded Concept of Private Prosecution, The, 25, Am. U. L. Rev., pp. 754 
  7. ↑ Isabella Okagbue (Spring, 1990). "Private Prosecution in Nigeria: Recent Developments and Some Proposals". Journal of African Law (Cambridge University Press on behalf of the School of Oriental and African Studies) 34 (1): 53-66. http://www.jstor.org/stable/745600. 
  8. ↑ Rothbard, Murray, "Punishment and Proportionality", The Ethics of Liberty, http://mises.org/rothbard/ethics/thirteen.asp 
  9. ↑ "Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction". The Yale Law Journal (The Yale Law Journal Company, Inc.) 65 (2): 209-234. Dec., 1955. http://www.jstor.org/stable/793827. 

Bibliography

MAZZILLI, Hugo Nigro. Regime Juridico do Ministério Público, 5ª edição, São Paulo: Saraiva, 2001.

External links