Prosecution Research Paper

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In its broadest sense, ‘prosecution’ signifies an aggrieved party’s initiation and pursuit of a legal case through the court system. It begins with the filing of a complaint document and continues through trial, awarding of remedies, and appeal. While this term technically applies to both civil and criminal matters, it is most commonly used in the criminal law context. In a criminal case, the term ‘prosecution’ may refer to the process of handling a dispute in criminal court or to the aggrieved party who files the complaint in criminal court.

This research paper addresses both definitions of criminal prosecution using comparative data to illuminate differences and similarities among prosecution systems throughout the world. Prosecutors have been called the ‘gate-keepers of criminal justice’ because without their actions, judicial intervention and sanctions could not occur (di Federico 1998). However, a study of prosecution should not be limited to assessments of the prosecutor’s role in individual cases. One must instead consider the ways in which countries deal with competing needs and limited resources when they establish and operate their prosecution systems. Because prosecution contributes substantially to the definition and implementation of criminal policy, any comprehensive examination of prosecutors’ functions must include an analysis of their relationship to the state.

This research paper considers six of the most salient features of prosecution systems: (a) the degree to which prosecution is handled by public officials or private parties; (b) the degree to which the prosecutor’s office is centralized or decentralized; (c) the political accountability of the prosecutor; (d) the prosecutor’s relationship to and with the police; (e) the prosecutor’s filing standards; and (f) the prosecutor’s role in court. The content of this essay will be limited to the role of prosecution in democratic countries; for a discussion of criminal courts in nondemocratic nations, see Trials: Cultural; Nazi Law; Socialist Law; Political Trials; War Crimes Tribunals.

1. Public Or Private Prosecution

In many legal systems, criminal law was once a branch of what scholars now call ‘torts,’ and prosecution was initiated and pursued by the injured parties. With the rise of the modern state, crime became a distinct offense against the state itself, and responsibility for prosecution was assumed by the state (Langbein 1974). This trend emerged earlier and more sharply in Europe than in England, where crimes were defined as offenses against the state, the system of privately initiated and financed prosecution remained in place well into the nineteenth century.

1.1 Prosecutors As Public Officials

On the European continent, public prosecutors play a much larger role in the criminal process than they do in the United States and England. Continental prosecutors control the investigation of crime, often having direct supervisory powers over the police, and typically oversee the execution and disposition of almost all criminal arrests. This tradition derives largely from the institution of the ministere publique from the Napoleonic Code. Furthermore, some civil law countries combine the role of prosecutor and judge, allowing officials to move back and forth between the two positions at different points in their careers and sometimes within the same case. A number of nonwestern countries that have based their criminal justice systems on German or French models (such as Japan) also permit role flexibility to varying degrees. Recent developments in France and Italy, however, suggest the use of more clearly defined boundaries between criminal justice system actors.

Common law countries reject this expansive conception of the prosecutor’s office and formally prohibit any degree of fluidity in roles, regarding such interchangeability as in conflict with due process and separation of powers principles. In common law countries such as the United States, the public prosecutor unilaterally (with very few exceptions) makes filing and case processing decisions. The investigative work is typically left to the police and judging is the domain of elected or appointed members of the judiciary. (Of course, in actual practice, the discretion with which each of these actors is vested allows some flexibility in task performance; see also Plea Bargaining and Policing for examples.) In England and Wales, the newly developed Crown Prosecution Service, comprised exclusively of professional prosecutors under the leadership of the Director of Public Prosecutions and the Attorney General, handles the prosecution of most crimes. Like their American counterparts, British judges and police officers function independently of prosecutors, although they do coordinate their activities.

1.2 Elements Of Private Prosecution

Since the mid-nineteenth century, public prosecutors everywhere have become more powerful and independent. However, since the 1970s, with the growth of the victims’ rights movement in many countries, legislatures have begun to provide victims with a greater voice in criminal proceedings. The degree of victim empowerment varies tremendously among countries. For example, Belgian law recognizes that certain crimes (i.e., defamation) require a formal complaint by the victim in order for the public prosecutor to initiate a criminal case. Even in that event, however, the public prosecutor is not obligated to file charges. In Germany, a victim may act as a private prosecutor if the public prosecutor does not file charges, or he may join the public prosecution as a joint plaintiff and support the prosecutor’s case. A French crime victim who feels ignored by the authorities may file a civil case based on the criminal behavior. This action automatically initiates a criminal case, thereby forcing an otherwise reluctant public prosecutor to become involved.

American crime victims generally have no formal right to participate directly in criminal cases; their role is limited to testifying as witnesses and to receiving restitution as part of the final case disposition. Nonetheless, victim enthusiasm or willingness to participate (or lack thereof) may greatly influence the prosecutor’s decision to proceed with a case; cooperative victims are not a prerequisite to a successful prosecution (given the expansive laws of evidence), but they often bolster an otherwise shaky case. Victims of crime in the United States can also file a civil lawsuit against the defendant based on the same conduct at issue in the criminal case, although the remedies available remain limited to civil damages. Interestingly, the role of private interests in prosecution has made a comeback in the United States, as scholars have recently debated the legitimacy of allowing private victims to finance investigations or prosecutions which are conducted by public officials (Kennedy 1997).

2. Centralized Or Decentralized Office

Centralization or decentralization of oversight affects all aspects of the prosecutorial function, from the hiring and training of staff, to the implementation of policies for filing and processing cases, to levels of responsiveness to public opinion. Scholars can distinguish between those highly centralized systems that place prosecutors in an national civil service hierarchy led by the Ministry of Justice, and those decentralized systems that consider prosecutors to be locally selected (and often elected) political officials. Overall these structural and institutional features are likely to be closely related to the larger structure of government and to make a difference (Damaska 1981). Needless to say, variations exist between these extremes, and even within each category, according to hiring practices or filing control.

At one extreme is the American experience. The vast majority of criminal cases—both serious and minor— in the United States are filed and processed at the state level. However, ‘State Control’ is something of a misnomer, because most American state prosecutors are county officials who enforce state law. The chief prosecutor of each office (usually called the district attorney) is elected by the people, while the deputies or assistants may be either career civil servants or employees of a specific administration. State attorneys general have little control over their behavior or filing practices, handling mostly training and appeals (Flemming et al. 1992). Each county operates its own hiring system and typically recruits graduates from local law schools. There is little advance training for the job; on-the-job training occurs locally, within the office or in short courses run by the state. As a result, each office sets its priorities according to the demands of its electorate and according to the interests of its leaders; this can produce great diversity in policies among prosecutors’ offices, even within the same state (Utz 1979, Feeley 1979).

At the other end of the spectrum lie countries like France and Japan, where the procuracy is tightly controlled and pyramidal in shape. For example, at the apex of the Japanese system sits the Supreme Public Prosecutors Office, followed by eight High Public Prosecutors Offices and then fifty District Public Prosecutors Offices. At the base are 452 Local Public Prosecutors Offices, located in major cities throughout Japan. The Local Offices prosecute only relatively minor cases, while the District Offices handle all serious crimes. Moreover, Japanese prosecutors are an elite subset of the population; they have graduated from top law schools, passed an extremely rigorous bar exam, and endured two years of training at the Supreme Court’s Legal Training Institute. Because they are overseen by the Supreme Court, Japanese prosecutors at all levels have close association with judges; indeed, prosecutors can transfer to judicial work if they like and vice versa. As a result of their training and the hierarchy within which they work, and perhaps their close association with the judiciary, Japanese prosecutors value consistency in case-handling to a degree which other nations’ prosecutors find almost inconceivable (Johnson 1996, 1998).

Centralization also affects the extent to which prosecutors can be influenced by public opinion. Officials in decentralized offices are often vulnerable to intense local political pressures and media criticism. In contrast, where public prosecutors’ offices form part of a civil service hierarchy headed by the Ministry of Justice, prosecutors may consider themselves more immune from public opinion. They contend that this immunity is crucial in order for the prosecutor to remain objective and impartial; it allows him to more easily dismiss cases for insufficient evidence, or to prosecute popular or famous citizens, without fear of retaliation on election day. These claims to immunity should not be taken at face value, however; some modern prosecutors in Italy, Spain, France, and Portugal will actively court the media to generate public interest and support for their cases. Prosecutors in civil service countries are also much less likely than American prosecutors to leave government work for private practice; hence, they are less concerned about keeping good relations with the local defense bar. However, the existence of tight governmental controls provides a different sort of pressure: at least one scholar has noted that Japanese prosecutors have been severely criticized for failing to prosecute corrupt politicians (Johnson 1996).

3. Accountability To The Public

As the previous comments regarding public opinion and corrupt politicians reveal, prosecutors in most countries must answer to someone for their unpopular decisions. As discussed above, some countries have responded to this issue by providing victims with the right to initiate private prosecutions after the public prosecutor declines to file charges. While there is not much data on the degree to which these provisions are used by private citizens, the existence of these policies serves (at least in theory) as a check on the prosecutor’s monopoly over charging decisions.

Where the prosecutor is an elected official, as in the United States, accountability is likely to come from another source: re-election pressures. A prosecutor who wishes to be re-elected must present herself as an ethical, fair, and supremely competent attorney and administrator who is responsive to the demands of the local community (Flemming et al. 1992). She is thus not likely to file charges for technical violations about which the local community cares little (such as prostitution in some places), and she may press for rigorous prosecution and sentencing for those crimes which inspire publicity, political lobbying, or protest (such as drunk driving or domestic violence in the latter part of the twentieth century).

Where the prosecutor is a career civil servant, accountability is usually to his superiors or to the Ministry of Justice. Decisions not to file charges will be reviewed by prosecutorial superiors, who tend to be conservative in matters of discretion not to prosecute (Damaska 1981). Japanese prosecutors, for example, must seek the approval of two or three superiors before making any charge decision (Johnson 1996, 1998). Yet some civil servant prosecutors have found another source of leverage; as noted above, prosecutors in Latin European countries often attempt to use media coverage to pressure office superiors into filing or pursuing controversial criminal cases. Hierarchical control is not unproblematic, though, particularly when it affects a prosecutor’s career advancement. France, for example, enacted reforms in 1993 and 1994 to limit the discretionary powers of the Minister of Justice, with regard to both his hierarchical supervision of prosecutorial activities and his decisions concerning the status, promotion, and discipline of public prosecutors (di Federico 1998).

Assessments of accountability must acknowledge context: prosecutors are, inter alia, employees of large organizations. As such, they must advance the interests of the organization in order to advance their own careers. Hence, prosecution policy and behavior are likely to follow bureaucratic dictates or public demands, despite (or within) the constraints provided by formal law.

4. Relationship To And With Police

Is a prosecutor a justice official or a member of law enforcement? While Langbein (1974) reports that English justices of the peace served as both investigators and prosecutors in the fourteenth and fifteenth centuries, most countries today have formally separated the roles of police and prosecutor. Nonetheless, prosecutors vary in the degree to which they control or participate in the investigative phase of a case. A prosecutor may bring a high level of control to police activities by formally supervising a police investigation (before or after bringing charges), by interviewing witnesses, or by attending the execution of search warrants. In contrast, a prosecutor may manifest low levels of control by simply filing charges in response to documents and evidence collected and submitted by investigating police officers.

In code-based countries with strongly centralized prosecution agencies, high control is the norm. Police may be statutorily required to notify prosecutors of an ongoing investigation or the detention of suspects, and the prosecutor can directly interrogate suspects or collect evidence. While prosecutors often delegate these decisions to police officers, the existence of prosecutorial investigative authority may serve as a useful check on police power (Johnson 1996, Frase 1990, 1999).

Low levels of control characterize common law countries like the United States; police typically handle the investigation and arrest phases of a criminal matter and notify the prosecutor only after arrest. While federal prosecutors often become far more involved in the investigatory phases, coordinating wire-taps, search warrants, and witness interviews, most state prosecutors do not interrogate suspects or assist in the collection of evidence (Leo 1996). Hence, police often control the flow of information on which prosecutors must rely in order to decide whether and what crimes to charge. This has led some commentators to conclude that prosecutors do little more than ratify police decisions (Feeley and Lazerson 1983), rendering the arrest itself far more significant than the prosecutor’s filing decision. The same tendency has been observed in Canada (Grosman 1969).

The division of labor between police and prosecutors is not always clear-cut or unproblematic, as police behavior can influence both the onset and eventual disposition of a criminal case (Skolnick 1975). These tensions are manifest in the British experience. The police were Britain’s public prosecutors from 1829 to 1986, due to the absence of a suitable alternative; in this time period, they developed a vested interest in controlling all stages of criminal cases— from investigation to arrest to prosecution (Fionda 1995). The Crown Prosecution Service was created to separate police and prosecutorial functions in order to remedy a perceived lack of police objectivity in prosecutorial duties, such as the filing and disposing of cases. However, in the fifteen years since the creation of the CPS, police officers have continued to fight for control over filing decisions and have been accused of manipulating files and witnesses to influence prosecutors’ options (Nduka-Eze 1995).

5. Filing Standards And Guidelines

With respect to filing policies, scholars are principally concerned with whether a nation imposes a program of mandatory or compulsory prosecution on the one hand, or officially allows its prosecutors discretion in filing charges on the other. Nonetheless, whether a country actually requires its prosecutors to file charges is often hard to ascertain; the official codes may dictate one practice while informal policies allow others. For example, the American criminal prosecution system gives vast discretion to prosecutors; many continental systems, in contrast, maintain a formal policy of ‘full prosecution’ and explicitly make no provision for individual discretion. However, most American systems have placed some restrictions on their prosecutors’ discretionary powers, while most continental systems permit discretion in hidden (or not-so-hidden) forms. This paradox has led observers to conclude that ‘the rule of compulsory criminal prosecution … may foster a wider use of discretion without responsibility if no control is at work’ (Guarneri and Pederzolo 2001).

Mandatory prosecution, which requires a prosecutor to bring a charge whenever there are sufficient grounds to suspect a person of having committed an offense, is a more common feature of civil law countries, whose provisions and requirements are strictly controlled by the criminal codes. Civil law countries typically choose to address undesired consequences by amending their codes, rather than openly permitting the prosecution to use discretion in enforcement. For example, Germany, Sweden, and other countries have handled their increased crime problem by legislatively downgrading or decriminalizing certain offenses, and by making others subject to administrative (rather than criminal) sanctions (Sessar 1979, Feeley 1979). However, Germany also recognizes the ‘principle of opportunity’ for petty offenses, which gives the prosecutor discretion to drop the charge, to issue a penal order (which allows a person to pay a fine in a minor case), or to bring the case for summary trial in order to expedite proceedings (Herrmann 1992, Felstiner 1979).

In France, the opportunity principle works somewhat differently. While the public prosecutor is not obligated to bring a prosecution, once she initiates a prosecution she no longer has a choice regarding whether to pursue the case (Frase 1999). In Italy, compulsory prosecution exists without the concurrent opportunity principle, but discretion reigns nonetheless (Gaurneri 1996, Corso 1993). When a prosecutor does not wish to file a case, she may neglect to investigate and ask the judge to declare the evidence insufficient, or she may allow the statute of limitation to lapse.

The Italian prosecutor’s manipulation of formal criteria to justify a non-filing decision raises the issue of discretion: in countries which officially allow some discretion, are prosecutors subject to any formal rules regarding its exercise? For example, Israeli and British prosecutors must prosecute when the evidence is sufficient, unless they find that prosecution would not be in the public interest (Harnon and Stein 1999, Fionda 1995). Notably, British prosecutors may be using this public interest criterion as an informal presumption against prosecution in relatively minor cases, especially where the defendant has no previous criminal record (Fionda 1995).

In the United States, where there is no official ‘public interest’ component to the filing decision, prosecutors have an enormous amount of discretion; they need to justify filing decisions only to their superiors, as victims have no legal rights to intervene. As a result, prosecutors allow informal social criteria, including victim characteristics, to influence their charging decisions. Cases involving victims who are related to defendants, or who are otherwise ‘undesirable’ people (such as prostitutes or gang members) trigger larger societal issues, and thus appear less distinctively ‘criminal’ to American juries. Because these cases pose conviction problems, prosecutors concerned about their personal ‘win rates’ are reluctant to file them (Frohmann 1997, Vera Institute of Justice 1981). American prosecutors have also been accused of overcharging cases, filing multiple charges in the complaint with an eye towards plea bargaining later. Overcharging gives the prosecutor leverage in the plea bargaining process, but it has been called a coercive, corrupting, and deceptive technique to get the defendant to agree to virtually the same sentence he would receive after trial (Alschuler 1968).

Discussion of filing policy necessarily leads to consideration of alternatives to prosecution, because many cases which are not technically prosecuted are also not fully dismissed. Rather, they are redirected into other channels, alternatively called diversion, penal orders, or summary procedures. These programs arose in response to demands to keep minor offenders and unimportant cases out of the already overworked court systems. However, they have all been accused of ‘widening the net’ of criminal social control, as prosecutors are more inclined to divert a minor offender into this type of alternative program than to drop his case altogether.

6. Roles In Court

The final point of comparison concerns the prosecutor’s role during the trial of a criminal case. Her role will largely be determined by the type of trial system in which she works (adversarial, inquisitorial, or some mixture thereof; see Trials: Cultural). She may be an active adversarial participant striving to win a conviction, or a more passive, impartial actor charged with ensuring that justice results.

Where the trial depends largely on the contents of a written dossier (in countries such as Japan, Argentina, France, and Germany), the prosecutor is generally more passive; she submits the dossier containing the investigative reports to the judge (or to the panel of judges) before trial, but she generally relinquishes control over questioning of witnesses. In many of these systems, the prosecutor is obligated to ask the judge for an acquittal following trial if the evidence merits this result, and the prosecutor typically has the right to appeal both the outcome of the case and the sentence.

In systems that require oral testimony (including Italy, Great Britain, Israel, and the United States), the prosecutor is the principal player in the courtroom. He may sit near the factfinders or judges to establish rapport; he controls the majority of the witnesses and the presentation of evidence; he argues his case both first and last, providing both the initial opening statement and the final closing argument. For this reason, prosecutors in oral-trial systems feel personally invested in the outcome of a case and often place tremendous pressure on themselves to win convictions (Heilbroner 1990, Baker 1999). They generally have no right to appeal acquittals.

A final consideration is the prosecutors’ input into the sentencing decision. Prosecutors are often said to have tremendous influence over sentencing based on their charging and plea bargaining policies. Because each crime is associated with a specific minimum and maximum sentence, the prosecutor can control the type of sentence a defendant will receive by filing or making him plead guilty to certain charges. This power is exacerbated by mandatory sentencing guidelines; by eradicating the judge’s discretion to sentence appropriately after conviction, these guidelines give the prosecutor the ability to control the sentence through his charge-bargaining practices. Furthermore, some nations, such as Great Britain and Germany, limit the ability of certain courts to impose certain punishments; hence, the mode of trial predetermines the maximum sentencing powers of the court in a given case. The prosecutor may thus indirectly control sentencing by filing the case in a particular type of court.

Prosecutors might also influence sentencing directly, although nations differ concerning the degree to which they allow prosecutors to make sentencing recommendations after trial. In many European countries, prosecutors can assist judges in navigating complex sentencing formulas, while in the United States the sentencing hearing is regarded as another phase of the adversarial process in which the prosecutor may present both witnesses and arguments. In Great Britain, the prosecutor has no legal authority to recommend an appropriate sentence; indeed, some commentators believe such a power would be an unconstitutional infringement on judges’ power (Fionda 1995). However, British prosecutors have a duty to correct a judge who is in danger of imposing an illegal sentence, and the British Attorney General, like prosecutors in South Africa and the United States, may appeal any sentence imposed by the trial court on the grounds of undue leniency or statutory error.

7. Conclusion

Given the vast array of criminal prosecution systems existing at the close of the twentieth century, it no longer seems useful to rely on the broad categories of adversarial and inquisitorial systems to illustrate similarities and differences. A number of axes exist that better describe the elements of various prosecution systems; to ignore these dimensions in favor of simple dichotomies provides us with too superficial a view of the prosecutor’s role in court, in public life, and in political affairs. Moreover, the prosecutor is not an isolated actor: her responsibilities, relationships, and roles depend on social, legal, and political contexts. In order to truly understand the role of prosecution from a social scientific perspective, we must commit ourselves to understanding these environments and to accepting the cultural differences which exist among the world’s nations.


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