Prosecutor

What Exactly Is a Prosecutor?

A prosecutor is the legal representative of the state or government in criminal trials against accused individuals. They are typically lawyers with a law degree who possess professional responsibility rules due to their role as representatives of the state’s power. In many countries, they play crucial roles that go beyond just representing the state; they also ensure justice and uphold the law.

The Role of Prosecutors in Different Countries

In Commonwealth Nations like Australia and Canada, the head of the prosecuting authority is known as the Director of Public Prosecutions (DPP). This person may be appointed, not elected, and operates under varying degrees of control by the Attorney General. In Australia, Crown Prosecutors handle serious criminal cases, while police sergeants with a traineeship in prosecution and advocacy manage minor cases. In Canada, Crown Attorneys are generally appointed by the provincial Attorney-General.

The Crown Prosecution Service (CPS) in England and Wales prosecutes on behalf of the Crown and takes forward prosecutions originating from police investigations. The DPP, a suitably qualified lawyer appointed by the Attorney General, plays an administrative and leadership role but does not take cases to court. Crown Prosecutors are lawyers who research, advise, prepare, and present cases at trial.

Other bodies like SFO (Serious Fraud Office), SPA (Special Public Prosecutor’s Office), and FCA (Financial Conduct Authority) also bring prosecutions independently. Prosecutions follow strict codes of conduct, including the Code for Crown Prosecutors, which govern charging and trials. Which agency is prosecuting may affect whether an offence can be properly tried as not all agencies can investigate and prosecute all offences.

When Should Another Agency Take Over a Case?

A case is instituted by another prosecuting agency when they have been solely responsible for the investigation and arrest of the suspect, even though the suspect is taken to the police station to be charged by a custody officer. The CPS advise that another prosecuting authority should probably conduct a case if:

• The police did not conduct the majority of the investigation
• The police were only involved in overseeing a search, effecting an arrest or assisting other investigators in the conduct of an interview
• The other authority is in possession of all the main exhibits
• Someone other than a police officer is named on the charge sheet as the person accepting the charge or as the officer in the case

Certain acts require the consent of the Attorney General or DPP before they can proceed, such as wide-ranging offences listed at Annex 1 of Consents to Prosecute.

Private vs. Public Prosecutions

In England and Wales, there is a statutorily protected common law right for any person to institute a private prosecution, retained by section 6(1) of the Prosecution of Offenders Act 1985. However, it usually proves practically difficult due to the high cost estimated at £8,500 on average.

The DPP has authority to take over any prosecution instituted by another person or organisation and can discontinue the prosecution if they see fit. In New Zealand, most crimes are prosecuted by a Police Prosecutor, an employee of the New Zealand Police, but 5% of serious cases are outsourced to a lawyer working at a private law firm known as a Crown prosecutor.

In Scotland, all prosecutions are carried out by Procurators Fiscal and Advocates Depute on behalf of the Lord Advocate. The Lord Advocate can direct investigations by Police Scotland and decide whether or not to prosecute it under solemn procedure or summary procedure.

Electing Prosecutors in the United States

The United States is unique as citizens elect prosecutors, with the director of a prosecution office known as district attorney. The prosecution is the legal party responsible for presenting cases against individuals or corporations suspected of breaking the law. Prosecutors are elected officials in state courts, except for United States Attorneys who are appointed by the President and confirmed by the Senate.

Prosecutors have various titles depending on the level of government and state, such as District Attorney, City Attorney, County Attorney, and State’s Attorney. They typically hire other attorneys to conduct most of their work and follow rules to ensure fair proceedings, including disclosing exculpatory evidence and not destroying potentially useful evidence.

Prosecutors are tasked with seeking justice in their prosecutions and must refrain from using improper methods calculated to produce a wrongful conviction. They have discretion to dismiss charges if they determine there is no reasonable likelihood of conviction. In some jurisdictions, criminal prosecutions are brought in the name of the Commonwealth, People, or State.

Prosecutors in Civil Law Jurisdictions

In civil law jurisdictions, prosecutors are typically civil servants who possess a university degree in law and additional training in administration of justice, similar to judges in some countries. 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 needed.

During a criminal trial, prosecutors must introduce and explain the case to the trier of fact. 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 administrative duties, such as advising the court during civil actions.

Under Belgian law, judges and prosecutors are judicial officers with equal rank and pay. In Brazil, public prosecutors form a body of autonomous civil servants working both at the federal and state level. Federal Prosecutors officiate before single judges and lower courts, while Associate Federal Prosecutors General try cases before superior federal courts.

The Prosecutor General of the Republic heads the federal body and tries cases before the Brazilian Supreme Court. State prosecutors practice before lower courts and apellate prosecutors before state courts of appeals. In Brazil, prosecutors have the duty to promote justice, including requesting acquittal if they become convinced of a defendant’s innocence. They conduct criminal investigations only in major cases involving police or public officials’ wrongdoings.

Prosecutors in France

The Office of the Prosecutor in France has a Chief Prosecutor and his deputies and assistants. The Chief Prosecutor initiates preliminary investigations and supervises formal judicial investigations led by judges. Crown prosecutors generally suggest a reasonable sentence, but the court’s decision is not obligated to follow it. They also have administrative duties, such as advising the court during civil actions.

Like defense counsel, the chief prosecutor may petition or move for further investigation. During criminal proceedings, prosecutors are responsible for presenting the case at trial to either the bench or the jury. Prosecutors generally suggest advisory sentencing guidelines, but the sentence remains at the court’s discretion. In addition, prosecutors have several administrative duties.

Prosecutors are considered magistrates under French law and are trained at the same school as judges.

Prosecutors in Germany

The Staatsanwalt is a life-tenured public official who heads pre-trial criminal investigations and represents the government in criminal courts. The Staatsanwalt must actively determine circumstances and make them available to the defendant or defense attorney.

Prosecutors in Italy

A Prosecutor’s Office in Italy is composed of a Chief Prosecutor assisted by deputies and assistants. Italian Prosecutors are judicial officers responsible for ensuring justice is carried out. They initiate preliminary investigations once they receive notice of a criminal act. They can direct investigations through orders and directives given to police detectives.

Prosecutors in Japan

In Japan, Public Prosecutors have considerable powers of investigation, prosecution, and superintendence. High-ranking officials of the Ministry of Justice are largely prosecutors.

Prosecutors in Poland

The Prokurator Generalny is the chief of the Prokuratura Krajowa (National Public Prosecutor’s Office). The GP has 5 deputies. The structure of Public Prosecution in Poland is four-level: Prokuratura Krajowa — National Public Prosecutor’s Office; prokuratury regionalne — provincial public prosecutor’s offices (11); prokuratury okręgowe — regional public prosecutor’s offices (45); and prokuratury rejonowe — district public prosecutor’s offices (358).

Prosecutors in South Korea

In South Korea, prosecutors are public officials who conduct crime investigations directly or indirectly. They have the power to prohibit a defendant from departing the Republic of Korea.

Prosecutors in Sweden

In Sweden, public prosecutors are lawyers who work out of the Swedish Prosecution Authority and direct police investigations of serious crimes. They decide arrests and charges on behalf of the public and can initiate appeals.

Public Procurators in China and Vietnam

A Public Procurator is bound by Public Procurators’ Law and has functions such as supervising the enforcement of laws, conducting public prosecution, and investigating criminal cases directly accepted by the People’s Procuratorates. The Supreme People’s Procuracy is the highest office of public procurators in Vietnam.

The Evolution of Prosecution

From early England to modern-day Brazil, the role of prosecutors has evolved significantly. In many countries, the prosecutor’s administration is directly subordinate to the executive branch. However, in some countries like Brazil or Italy, prosecutors are judicial civil servants with institutional independence. In other countries, private prosecution remains a viable option for individuals or entities.

Private prosecution existed in early England where victims could hire a private attorney to prosecute criminal charges against the alleged perpetrator. In Colonial America, public officials dominated the prosecution of crimes, but privately funded prosecutors remained significant throughout the 19th century. The practice also had use in Nigeria and Virginia, but its use is being phased out in Nigeria and no longer permitted in Virginia.

As we navigate through the complexities of legal systems worldwide, one thing remains clear: the role of a prosecutor is pivotal in ensuring justice is served. Whether it’s in the bustling streets of Tokyo or the quiet corridors of a small town courthouse, prosecutors play an indispensable part in upholding the law and protecting society.