Prosecutor
Encyclopedia
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 accused of breaking the law.
s who possess a law degree
, and are recognized as legal professionals by the court in which they intend to represent the state (the society) (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." Not all U.S. states adopt the model rules, however U.S. Supreme Court cases and other appellate cases have ruled that such disclosure is required. Typical sources of ethical requirements imposed on prosecutors come from appellate court opinions, state or federal court rules, and state or federal statutes (codified laws).
, 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.
, 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, Idaho
and Washington counties), Attorney General (in Rhode Island and Delaware), and City Attorney (in Missouri cities that have city prosecutors and all Washington state cities) are all titles of prosecutors in various state courts. Prosecutors are most often chosen through local elections. United States Attorney
s 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.
, public prosecutors in most provinces are called Crown Attorney
or Crown Counsel. They are generally appointed by the provincial Attorney-General.
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 fine
s 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.
in law, and additional training in the administration of justice. In some countries, such as France
and Italy
, they belong to the same corps of civil servants as the judges.
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).
, 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" (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 will not 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.
, 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.
, 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.
, a Prosecutor's Office is composed of a Chief Prosecutor (procuratore capo) assisted by deputy prosecutors (procuratori aggiunti) and assistant prosecutors (sostituti procuratori).
Prosecutors in Italy are judicial officers just like judges and are ceremonially referred to as Pubblico Ministero/ Public Ministry (or P.M.)
Italian Prosecutors officiate as custos legis, being responsible to ensure that justice is indeed carried out. They are obligated under the Constitution to initiate preliminary investigations once they are informed or take personal notice of a criminal act, the so called notitia criminis, or receive a bill of complaint. They can make direct investigations or conduct them through orders and directives given to (judicial) police detectives (which anyway have the chance to make their own parallel investigations in coordination with the Prosecutor): if enough evidence has been gathered in order to proceed, the prosecution is compulsory and it must move from preliminary investigations to initiate trial proceedings. At trial, the prosecuting attorney has to handle the prosecution but is prohibited from withholding exculpatory evidence, for they have to promote justice, which means that they have the duty of not only trying criminal cases, but, to request the judge to acquit him if, during the trial, they become convinced of a defendant's innocence, or agree that there's no evidence, beyond any reasonable doubt, of his guiltiness.
In appellate courts, the Office of the Prosecutor is called Procura Generale and the Chief Prosecutor Procuratore Generale (PG). The Procuratore Generale presso la Corte di Cassazione is the Chief General Prosecutor before the Corte di Cassazione, the Supreme Court of Italy.
Prosecutors are allowed during their career to act in the other's stead, but 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.
, public prosecutors are professional officials who have considerable powers of investigation, prosecution, superintendence of criminal execution and so on. Prosecutors can direct police(detectives) for investigation purposes, and sometimes investigate directly(sometimes). 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.
Prosecutors have the rights to investigate and police follows the lead of the prosecution. It is a long fight between police and the prosecution to take the right to investigate.
is the General Prosecutor. The GP has 5 deputies. Structure of Public Prosecutor in Poland is 4-level:
General Prosecutor Office --> Appellation Prosecutor Offices (11) --> District Prosecutor Offices (46) --> Regional Prosecutor Offices (326).
http://www.pk.gov.pl/
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).
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
, were not aimed at fulfilling the same roles as police forces in Western democracies.
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:
is the highest office of public procurators in Vietnam
.
or Brazil
- the prosecutors are judicial civil servants and so their hierarchy is installed with the same (or nearly the same) liberties and independence warranties which the judges traditionally enjoy.
In other countries, a form of private prosecution is available, 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.
, 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. The use of a private prosecutor was incorporated into the common law
of Virginia
and is still permitted there. Private prosecutors were also used in North Carolina
as late as 1975. Private prosecution has been used in Nigeria
, but the practice is being phased out.
Bruce L. Benson
's To Serve and Protect
lauds the role of private prosecutors, often employed by prosecution association
s, 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 tort
s. 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." Private prosecution has been cited as a remedy for district attorneys' unwarranted inaction.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
, or the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
. The prosecution is the legal party responsible for presenting the case in a criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
against an individual accused of breaking the law.
Common law jurisdictions
Prosecutors are typically lawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s who possess a law degree
Law degree
A Law degree is an academic degree conferred for studies in law. Such degrees are generally preparation for legal careers; but while their curricula may be reviewed by legal authority, they do not themselves confer a license...
, and are recognized as legal professionals by the court in which they intend to represent the state (the society) (that is, they have been admitted to the bar
Admission to the bar
An admission to practice law, also called admission to the bar, is acquired when a lawyer receives a license to practice law. Becoming a lawyer is a widely varied process around the world. Common to all jurisdictions are requirements of age and competence; some jurisdictions also require citizenship...
).
They usually only become involved in a criminal case once a suspect has been identified and charges
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
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
Professional responsibility
Professional responsibility is the area of legal practice that encompasses the duties of attorneys to act in a professional manner, obey the law, avoid conflicts of interest, and put the interests of clients ahead of their own interests....
rules in addition to those binding all lawyers. For example, in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Rule 3.8 of the ABA Model Rules of Professional Conduct
American Bar Association Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct, created by the American Bar Association , are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation...
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." Not all U.S. states adopt the model rules, however U.S. Supreme Court cases and other appellate cases have ruled that such disclosure is required. Typical sources of ethical requirements imposed on prosecutors come from appellate court opinions, state or federal court rules, and state or federal statutes (codified laws).
Directors of Public Prosecutions
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
and South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, the head of the prosecuting authority is typically known as the Director of Public Prosecutions
Director of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
, and is appointed, not elected. A DPP may be subject to varying degrees of control by the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, 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
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
or Fiji's
Constitution of Fiji
The 1997 Constitution of Fiji was the supreme law of Fiji from its adoption in 1997 until 2009 when President Josefa Iloilo purported to abrogate it. It was also suspended for a period following the 2000 coup d'état led by Commodore Frank Bainimarama....
, tend to guarantee the independence and impartiality of the DPP.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, 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
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, and West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
), County Prosecutor, State Attorney, State's Attorney
State's Attorney
In the United States, the State's Attorney is, most commonly, an elected official who represents the State in criminal prosecutions and is often the chief law enforcement officer of their respective county, circuit...
, State Prosecutor, Commonwealth's Attorney
Commonwealth's Attorney
Commonwealth's Attorney is the title given to the elected prosecutor of felony crimes in Kentucky and Virginia. Other states refer to similar prosecutors as District Attorney or State's Attorney....
(in Virginia and Kentucky), District Attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
(in some states), District Attorney General (in Tennessee), Prosecuting Attorney (in Missouri, Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
and Washington counties), Attorney General (in Rhode Island and Delaware), and City Attorney (in Missouri cities that have city prosecutors and all Washington state cities) are all titles of prosecutors in various state courts. Prosecutors are most often chosen through local elections. United States Attorney
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
s represent the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
in federal court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, in both civil and criminal cases. "Private attorneys general" represent the People of the United States of America in federal court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, in both civil and criminal cases.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, public prosecutors in most provinces are called Crown Attorney
Crown attorney
Crown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
or Crown Counsel. They are generally appointed by the provincial Attorney-General.
Scotland
Though Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
is a mixed system, its civil law jurisdiction indicates its civil law heritage. Here, all prosecutions are carried out by Procurators Fiscal
Procurator Fiscal
A procurator fiscal is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland , conduct Fatal Accident Inquiries and handle criminal complaints against the police A procurator fiscal (pl. procurators fiscal) is a public prosecutor in Scotland. They...
and Advocates Depute on behalf of the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
, and, in theory, they can direct investigations by the police
Policing in the United Kingdom
Law enforcement in the United Kingdom is organised separately in each of the legal systems of the United Kingdom: England & Wales, Northern Ireland and Scotland ....
. 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
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
or summary procedure
Summary offence
A summary offence is a criminal act in some common law jurisdictions that can be proceeded with summarily, without the right to a jury trial and/or indictment .- United States :...
. Other remedies are open to a prosecutor in Scotland, including fiscal fine
Fiscal fine
A fiscal fine is a form of deferred prosecution agreement in Scotland issued by a procurator fiscal for certain summary offences as an alternative to prosecution....
s and non-court based interventions, such as rehabilitation
Rehabilitation (penology)
Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
and social work
Social work
Social Work is a professional and academic discipline that seeks to improve the quality of life and wellbeing of an individual, group, or community by intervening through research, policy, community organizing, direct practice, and teaching on behalf of those afflicted with poverty or any real or...
. All prosecutions are handled within the Crown Office and Procurator Fiscal Service
Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service provides the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Her Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution,...
. 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 degreeAcademic degree
An academic degree is a position and title within a college or university that is usually awarded in recognition of the recipient having either satisfactorily completed a prescribed course of study or having conducted a scholarly endeavour deemed worthy of his or her admission to the degree...
in law, and additional training in the administration of justice. In some countries, such as France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, 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 BrazilBrazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, 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" (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 will not 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 FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, the Office of the Prosecutor includes a Chief Prosecutor, or Procureur de la République (or procureur général in an appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
or in the Supreme Court
Court of Cassation (France)
The French Supreme Court of Judicature is France's court of last resort having jurisdiction over all matters triable in the judicial stream but only scope of review to determine a miscarriage of justice or certify a question of law based solely on points of law...
) 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
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. 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 GermanyGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, the Staatsanwalt
Staatsanwaltschaft
The Staatsanwaltschaft or public prosecutor's offices are criminal justice bodies attached to the judiciary but separate from the courts in Germany, Austria and the German-speaking parts of Switzerland...
(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
Compulsory prosecution
Compulsory prosecution is an aspect of certain justice systems in which the prosecutor is required to press charges when he has sufficient evidence to support a conviction. This system is used in Germany. It also has been required by the Constitution of Italy since 1948. The lack of such a...
if the prosecutor has sufficient evidence to convict.
Italy
In ItalyItaly
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, a Prosecutor's Office is composed of a Chief Prosecutor (procuratore capo) assisted by deputy prosecutors (procuratori aggiunti) and assistant prosecutors (sostituti procuratori).
Prosecutors in Italy are judicial officers just like judges and are ceremonially referred to as Pubblico Ministero/ Public Ministry (or P.M.)
Italian Prosecutors officiate as custos legis, being responsible to ensure that justice is indeed carried out. They are obligated under the Constitution to initiate preliminary investigations once they are informed or take personal notice of a criminal act, the so called notitia criminis, or receive a bill of complaint. They can make direct investigations or conduct them through orders and directives given to (judicial) police detectives (which anyway have the chance to make their own parallel investigations in coordination with the Prosecutor): if enough evidence has been gathered in order to proceed, the prosecution is compulsory and it must move from preliminary investigations to initiate trial proceedings. At trial, the prosecuting attorney has to handle the prosecution but is prohibited from withholding exculpatory evidence, for they have to promote justice, which means that they have the duty of not only trying criminal cases, but, to request the judge to acquit him if, during the trial, they become convinced of a defendant's innocence, or agree that there's no evidence, beyond any reasonable doubt, of his guiltiness.
In appellate courts, the Office of the Prosecutor is called Procura Generale and the Chief Prosecutor Procuratore Generale (PG). The Procuratore Generale presso la Corte di Cassazione is the Chief General Prosecutor before the Corte di Cassazione, the Supreme Court of Italy.
Prosecutors are allowed during their career to act in the other's stead, but 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 JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, public prosecutors are professional officials who have considerable powers of investigation, prosecution, superintendence of criminal execution and so on. Prosecutors can direct police(detectives) for investigation purposes, and sometimes investigate directly(sometimes). Only prosecutors can prosecute criminals in principle, and prosecutors can decide whether to prosecute or not. High-ranking officials of the Ministry of Justice
Ministry of Justice (Japan)
The is one of Ministries of the Japanese government.-Meiji Constitution:The Ministry of Justice was established under the Constitution of the Empire of Japan in 1871 as the .-Constitution of Japan:...
are largely prosecutors.
South Korea
In Korea's civil law system, each prosecutor constitutes a separate and independent government institute to investigate and file appeals. The whole prosecution is also called as one as the whole (검사동일체원칙). The ministry of justice can lead the head of the prosecution, but each prosecutor only follows the order of the head of the prosecution.Prosecutors have the rights to investigate and police follows the lead of the prosecution. It is a long fight between police and the prosecution to take the right to investigate.
Poland
The highest ranking prosecutor office in PolandPoland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
is the General Prosecutor. The GP has 5 deputies. Structure of Public Prosecutor in Poland is 4-level:
General Prosecutor Office --> Appellation 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
Supreme Court of Sweden
The Supreme Court of Sweden is the supreme court and the third and final instance in all civil and criminal cases in Sweden. Before a case can be decided by the Supreme Court, leave to appeal must be obtained, and with few exceptions, leave to appeal can be granted only when the case is of...
passes from the case's prosecutor to the Director of Public Prosecutions (Riksåklagaren).
Socialist law jurisdictions
A Public ProcuratorPublic procurator
A public procurator is an officer of a state charged with both the investigation and prosecution of crime. The office is a feature of a civil law inquisitorial rather than common law adversarial system of law and is usually found in current or former communist states...
is an office used in Socialist judicial systems
Socialist law
Socialist law denotes a general type of legal system which has been used in communist and formerly communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a...
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
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
. Conversely, the policing systems in socialist countries, such as the Militsiya
Militsiya
Militsiya or militia is used as an official name of the civilian police in several former communist states, despite its original military connotation...
of the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
, were not aimed at fulfilling the same roles as police forces in Western democracies.
People's Republic of China
A Public ProcuratorPublic procurator
A public procurator is an officer of a state charged with both the investigation and prosecution of crime. The office is a feature of a civil law inquisitorial rather than common law adversarial system of law and is usually found in current or former communist states...
is a position in the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, analogous to both detective
Detective
A detective is an investigator, either a member of a police agency or a private person. The latter may be known as private investigators or "private eyes"...
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:
- Supervise the enforcement of laws according to law.
- Public prosecution on behalf of the State.
- Investigate criminal cases directly accepted by the People's Procuratorates as provided by law.
- Other functions and duties as provided by law.
Vietnam
The Supreme People's ProcuracySupreme People's Procuracy of Vietnam
The Supreme People’s Procuracy of Vietnam is responsible for prosecutions and legal matters. It functions like the prosecutor’s office or attorney general’s office in Western countries – see public procurator and procurator.-Operations:...
is the highest office of public procurators in Vietnam
Vietnam
Vietnam – sometimes spelled Viet Nam , officially the Socialist Republic of Vietnam – is the easternmost country on the Indochina Peninsula in Southeast Asia. It is bordered by China to the north, Laos to the northwest, Cambodia to the southwest, and the South China Sea –...
.
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). In some other countries - such as ItalyItaly
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
or Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
- the prosecutors are judicial civil servants and so their hierarchy is installed with the same (or nearly the same) liberties and independence warranties which the judges traditionally enjoy.
In other countries, a form of private prosecution is available, 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.
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. In the 18th century, prosecution of almost all criminal offenses in England was private, usually by the victim. In colonial AmericaColonial America
The colonial history of the United States covers the history from the start of European settlement and especially the history of the thirteen colonies of Britain until they declared independence in 1776. In the late 16th century, England, France, Spain and the Netherlands launched major...
, because of Dutch (and possibly French) practice and the expansion of the office of attorney general
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, 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. The use of a private prosecutor was incorporated into the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
and is still permitted there. Private prosecutors were also used in North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
as late as 1975. Private prosecution has been used in Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
, but the practice is being phased out.
Bruce L. Benson
Bruce L. Benson
Dr. Bruce L. Benson is an American academic economist who is widely recognized as an authority on law and economics and a major exponent of anarcho-capitalism legal theory. He is DeVoe L. Moore Professor and Distinguished Research Professor at Florida State University, where he serves as Chairman...
's To Serve and Protect
To Serve and Protect (book)
To Serve and Protect: Privatization and Community in Criminal Justice is a book by Bruce L. Benson about private policing, private prosecution, and other market-based methods of providing criminal justice...
lauds the role of private prosecutors, often employed by prosecution association
Prosecution association
A prosecution association was an organization of citizens, typically in the same community, who paid dues to cover one another's costs of privately prosecuting offenders should a crime be committed against them....
s, in serving the needs of crime victims in England. Radical libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
theory holds that public prosecutors should not exist, but that crimes should instead be treated as civil tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s. Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
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." Private prosecution has been cited as a remedy for district attorneys' unwarranted inaction.
External links
- www.prosecutor.info indexes almost 2,900 prosecutor web sites throughout the USA and other countries.
- www.ProsecutorTips.com Free trial advocacy tips for prosecutors and trial
- Summaries of Recent U.S. Criminal Law Decisions
- CCPE Consultative council of European prosecutors
- L'Archivio "diritto – history"