Prosecution: Comparative Aspects

When one looks at the relevant law, the Continental prosecutor tends to play a leading role in the investigation process. His formal position depends on whether he is to share this role with the investigating magistrate (juge d'instruction in France, Rechter-Commisaris in the Netherlands), a judicial officer with a specific mandate to conduct pretrial investigations. But even when that is the case, the prosecutor is entrusted with the investigation of all but the most serious offenses. Although the law describes the prosecutor's role as "conducting" the investigation, the prosecutor generally delegates routine operations to the police. As a result, it is almost invariably the police who are in fact conducting the bulk of criminal investigation.

More specifically, legal arrangements in the three Continental countries treated here are as follows:

In Austria, police and all other public authorities are obliged to report to the prosecutor any suspicion of a criminal offense (Austrian StPO, para. 84). The prosecutor must then follow up on such reports by directing police or an investigating magistrate to obtain further information by interrogating witnesses and securing relevant physical evidence (Austrian StPO, paras. 87, 88). In the most serious cases, which are to be tried before a jury court, the prosecutor will then turn over the investigation to the investigating magistrate, who is responsible for determining whether there is sufficient evidence to make the defendant stand trial. Although the prosecutor is precluded from performing acts of investigation himself, he (as well as the suspect) can request the investigating magistrate to conduct particular acts of investigation (Austrian StPO, para. 97). The prosecutor can at any time terminate the magistrate's investigation by declaring that he no longer wishes to prosecute the case, and he can do so even when the magistrate has returned the file after closing the investigation with the indication that there is sufficient cause to proceed to trial (Austrian StPO, para. 112). The investigating magistrate, on the other hand, can dismiss the case even against the prosecutor's wishes (Austrian StPO, para. 109). The great majority of cases do not require involvement of an investigating magistrate. In these cases, it is the prosecutor who supervises and guides the investigation.

French procedure is similar in many respects. However, the French prosecutor can personally perform acts of investigation; he can, for example, interrogate witnesses and, if a suspect has been caught while committing the offense or soon thereafter, conduct searches and seizures on the spot (French CPP, arts. 54, 56). As is the case in Austria, investigations conducted by magistrates are in practice the exception rather than the rule (see Frase, p. 667), and it is thus the prosecutor who is in charge of investigating all but the most serious criminal cases.

Germany abolished the Office of Investigating Magistrate in 1975 and since that time places full responsibility for pretrial investigations in the hands of the prosecutor. Police are to undertake those investigative measures which are immediately necessary to avoid loss of critical evidence, but they must then report to the prosecutor without delay (German StPO, para. 163). The prosecutor conducts the investigation, calling upon the police for assistance to the extent necessary (German StPO, paras. 160, 161). As in other Continental legal systems, acts involving more serious intrusions into citizens' liberty or privacy (e.g., pretrial detention, wiretaps, and searches and seizures) require judicial permission prior to their execution or, if exigent circumstances made immediate action necessary, subsequent authorization by a magistrate.

The legal situation is somewhat different in England. According to English law, investigation is generally the task of the police, and the members of the Crown Prosecution Service are limited to requesting the police to undertake further investigatory acts if that is deemed necessary. The police are not compelled by law to honor such requests. The advantage of the English model is its clear separation of functions: the police investigate and initiate a prosecution, and the prosecutor makes all further determinations. The drawback of that model is that the prosecutor must accept the results of the investigation as presented to him and is dependent on the goodwill of the police for gathering further information he may regard as necessary for intelligent decision-making.

The Continental model avoids this problem by casting the prosecutor in the role of "conducting" the investigation as well as directing and supervising police activities. Continental laws describe the police in criminal proceedings as subservient to the prosecutor (see, e.g., French CPP, art. 41-2; German StPO, para. 161), and they are thus duty-bound to carry out all investigatory acts the prosecutor demands. The prosecutor's control over police is, at the same time, regarded as a guarantee of the police's adherence to relevant legal rules in pretrial proceedings.

In all Continental systems, however, reality differs from the statutory arrangement described above. In practice, the balance of powers established by the legislature is invariably tilted in favor of the police. At least in routine matters, the police clear up cases completely before even informing the prosecutor of their existence, and prosecutors typically defer to the police with respect to the investigation. This does not necessarily mean, however, that prosecutors always accept the findings of the police without further inquiry. In Germany, it has been found to be quite common for the prosecutor to request police to undertake further investigations if he or she is willing to press charges but perceives a need to obtain additional information to strengthen the position of the prosecution (Steffen, p. 183). Yet it is only in very serious or spectacular cases that the prosecutor actually directs the police investigatory activities or takes the investigation into his or her own hands. German prosecutors may sometimes personally interrogate the victim or an important witness—witnesses are under a legal duty to appear before the prosecutor but need not talk to the police (German StPO, para. 161a)—but even such limited involvement in the investigation usually occurs at the request of the police. According to one German study, prosecutors personally conducted parts of the investigation in only 1–5 percent of the cases (Blankenburg, Sessar, and Steffen, p. 99). The only area in which Continental prosecutors tend to investigate on their own is white-collar crime. Several prosecutor's offices have established departments staffed with lawyers, accountants, and other specialists, which have monopolized the investigation of serious economic crime.

The fact that Continental prosecutors largely abstain from investigation has a significant impact on the allocation of powers in the pretrial process. Although the police lack official authority to dismiss cases, there is strong evidence that they can and do predetermine prosecutorial decision-making by the amount of investigative effort they invest in particular types of offenses. The police, moreover, collect and electronically store large amounts of information on crime and offenders, and they often shield this information even from prosecutors. As most Continental prosecutors are unable or unwilling to counteract such police strategies, prosecutors' impact on the case flow from detection of an offense to its adjudication is merely negative: they can screen out cases previously "cleared" by the police, but they cannot restore cases lost through strategic decisions of the police or through insufficient police work.

To a large extent, this state of affairs is inevitable because the police monopolize the manpower, expertise, information, and equipment necessary for successful investigation. Yet the possibilities of controlling police decisionmaking in the area of crime detection and investigation ought to be further explored. Because prosecution policy is heavily dependent on the allocation and deployment of police resources, these matters should not be left to ad hoc determination by police chiefs or individual officers. A thorough restructuring of decision-making and control processes in criminal investigations may well be necessary. Such reforms would have to start with accepting the fact that prosecutors do not conduct or even direct investigations. Shedding the fiction of prosecutorial domination of the investigation process might be the key to a realistic and feasible definition of the prosecutor's role. This role should primarily be supervisory. It could have the following features: police inform the prosecutor as early as possible of each prima facie plausible report or complaint of an offense; the prosecutor may give general or specific advice but leaves the conduct of the investigation to the police, who in turn make continuously available all relevant information to the prosecutor and confer with him when major strategic or tactical decisions have to be made. When the police deem the investigation complete, they submit their findings, and the prosecutor can demand further information if necessary. The decision whether to prosecute should be the prosecutor's alone.