District and Prosecuting Attorneys

The elected or appointed public officers of each state, county, or other political subdivision who institute criminal proceedings on behalf of the government.

Federal attorneys who represent the United States in prosecuting federal offenses are U.S. attorneys.

A district or prosecuting attorney is the legal representative of the state, county, or municipality, whose primary function resides in instituting criminal proceedings against violators of state or municipal penal laws. The law of the particular jurisdiction determines whether they are appointed or elected to office and their term of office.

The legislature may, within the restrictions imposed by constitution or statute, prescribe the qualifications of the prosecuting attorney. He or she may be required to reside in the district or satisfy a particular minimum-age requisite. District attorneys usually must be attorneys-at-law who are licensed to practice in the state and, depending upon the jurisdiction, must have spent a specified number of years practicing law.

The duty of the district attorney is to ensure that offenses committed against the public are rectified pursuant to the commencement of criminal prosecutions. He or she may exercise considerable discretion in ascertaining the manner in which the duty of district attorney should be performed. The prosecuting attorney, however, must be fair and unbiased, and refrain from conduct that would deprive the defendant of any constitutional or statutory right. The legislature may regulate his or her functions within statutory or constitutional limitations.

A district attorney determines when to initiate a particular prosecution and must exercise due diligence in conducting the prosecution. The individual may neither restrain the GRAND JURY from considering charges by asserting that the government will not prosecute nor dismiss a criminal charge pending before it. He or she does, however, maintain control of criminal proceedings in the trial court. Statutes define the duties of the prosecuting attorney with respect to civil litigation.

The respective powers of the district attorney and of the ATTORNEY GENERAL, the principal law officer of the state, are ordinarily disparate. Neither the district attorney nor the attorney general may impinge upon powers reserved exclusively to the other.

A district attorney is immune from liability for damages incurred as a result of his or her acts or omissions that occur within the scope of official duties, although the person may be held liable for conduct in excess of such scope.

Statutes prescribe the compensation of prosecuting attorneys.

A prosecuting attorney whose term is regulated by law cannot be removed or suspended from office, other than pursuant to the manner authorized by constitution or statute. The grounds specified by law govern removal. Mere misconduct committed in office, such as habitual intoxication, is usually an insufficient basis for removal. In some jurisdictions, however, conduct that is entirely extraneous to official duties may reveal flaws in personal character that render the individual unfit to hold the office and subject him or her to removal.

Suspension or removal may ensue from official misconduct or neglect of duty, such as the improper refusal to initiate criminal investigations or prosecutions, or inept execution of such proceedings.

Removal may also be justified on the basis of the prosecuting attorney's failure to comply with the constitutional duties of disclosure imposed by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates DUE PROCESS where the evidence is material either to guilt or to punishment, irrespective of the GOOD FAITH or bad faith of the prosecution."

Removal of a prosecuting attorney may also be predicated on his or her conferral of positions in the office to friends or relatives regardless of their qualifications.

The removal process must comply with constitutional or statutory requirements. In some jurisdictions, the district attorney may be removed by the court in proceedings commenced by the interested parties or by IMPEACHMENT. The legislature, within constitutional limitations, may designate the nature of the removal proceeding.

Statutes provide for the appointment of assistant district attorneys to render supplementary services to the district attorney. Independent of statute, however, the courts frequently exercise discretionary power to appoint attorneys to assist the prosecuting attorney in criminal cases. Statutes primarily govern the qualifications, salary, tenure, powers, and removal of such attorneys.

Special prosecutors are attorneys appointed by the government to investigate criminal offenses involving officials of the EXECUTIVE BRANCH, since the government cannot effectively investigate itself.