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Further Readings

One who prosecutes another for a crime in the name of the government.

State and county governments employ prosecutors to represent their local communities in complaints against criminal defendants. On the federal level, the president appoints prosecutors to represent the United States in complaints against criminal defendants.

In some states a prosecutor must present the court with a written statement of the charges, called an information. In other states a prosecutor is required to convene a GRAND JURY before charging a defendant with a serious crime. A grand jury is a collection of laypersons selected by the prosecutor to examine evidence and decide whether to indict the defendant and so authorize prosecution. On the federal level, the FIFTH AMENDMENT requires prosecutors to obtain an indictment for capital or "otherwise infamous" crimes, with the exception of crimes arising out of active military service.

In most criminal cases, the prosecutor must match wits with the defense attorney who represents the defendant. Almost all criminal defendants are represented by an attorney, even if they cannot afford to pay for one. If a court does not offer LEGAL REPRESENTATION to a criminal defendant, the defendant may not be incarcerated upon conviction.

Prosecutors have a broad discretion in determining whether to prosecute a criminal defendant. A prosecutor does not have to personally believe BEYOND A REASONABLE DOUBT that the defendant committed the alleged act. A prosecutor must simply possess enough evidence to support a reasonable belief that the defendant committed the crime.

There are two notable limits on the prosecutor's discretion to prosecute. First, a prosecutor may not base a prosecution on "an unjustifiable standard such as race, religion, or other ARBITRARY classification" (Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]). For example, a prosecutor may not selectively prosecute only Chinese persons who violate laws regulating laundry facilities (YICK WO V. HOPKINS, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]).

Second, a prosecutor may not vindictively add charges because a defendant has pursued a constitutionally protected right (Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 [1974]). For example, assume that a defendant is convicted at trial but that the conviction is reversed on appeal. If the prosecutor seeks to retry the defendant, the prosecutor may not, without more evidence, charge the defendant with more serious charges than the defendant faced in the first trial. A prosecutor may threaten a defendant with a more serious charge if the defendant refuses to plead guilty to a lesser criminal charge, but only if the prosecutor has evidence to support the more serious charge (Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 [1978]).

Prosecutors hired by the government are the only persons empowered to prosecute criminal cases. Private parties may lodge criminal complaints against persons or groups, but under state and federal statutes, only a duly authorized attorney may prosecute a criminal case. Federal and state governments can prohibit unauthorized persons from prosecuting other persons because the control of criminal prosecutions is a legitimate interest of government (Leeke v. Timmerman, 454 U.S. 83, 102 S. Ct. 69, 70 L. Ed. 2d 65 [1981]). This rule is sensible because it allows the government to prevent the judicial system from becoming more overburdened.

Prosecutors have many duties to perform in the course of a criminal prosecution. At the arraignment—the defendant's first appearance before the court—the prosecutor must make a bail recommendation. Bail is the amount of money that the defendant must pay the court to gain release from jail. Release for a fraction of bail may be obtained if a criminal defendant pays a bail bonds company which promises to pay the bail if the defendant does not show for future court appearances. A prosecutor may recommend that the court deny bail to an allegedly dangerous defendant to keep the defendant in jail while the case is being processed.

The prosecutor must prepare the case against the defendant. She does this by reviewing the evidence, conducting an investigation, and communicating with police officers. The prosecutor may issue directives to law enforcement personnel to find more evidence. The prosecutor also must notify the defendant of the evidence against him and must turn over any exculpatory evidence (evidence that would tend to clear the defendant) that the prosecutor possesses.

The prosecutor usually meets with the defendant or the defendant's attorney in advance of trial to discuss the case. Considering the vast number of criminal laws passed by state and federal legislatures, defendants usually face more than one criminal charge for any given criminal episode. The ability to bring multiple charges gives prosecutors a measure of bargaining power over criminal defendants. Prosecutors often are willing to drop certain charges and recommend lesser sentences for defendants who agree to plead guilty to a certain crime. This practice is called PLEA BARGAINING.

If the defendant does not wish to plead guilty, the prosecutor usually must defend the legitimacy of the prosecution at various stages before trial. In felony cases the prosecutor may be required under law to obtain permission from a grand jury before she or he can prosecute the defendant. A grand jury is a panel of individuals that can reject a criminal prosecution for lack of evidence. If the grand jury returns a no bill, the defendant is not indicted and the case against the defendant must be dropped. If the grand jury returns a true bill, the defendant is indicted and the prosecution may proceed.

Few criminal defendants proceed to trial. More than 90 percent of all criminal prosecutions are disposed of through plea bargaining. Those criminal defendants who do proceed to trial usually mount challenges prior to trial based on the legality of evidence gathering and the sufficiency of the evidence against them. Defendants may make requests of the court. For instance, a defendant may request that the trial be moved to a different geographic location, or a defendant may ask the court to forbid the trial participants from talking to the media. The prosecutor also may challenge evidence offered by the defendant and make certain requests of the court. These challenges and requests are made in pretrial motions and hearings. If the prosecutor does not rebut or respond to the defendant's arguments regarding the evidence, the court may dismiss the case before it goes to trial.

At trial the prosecutor must prove, beyond a REASONABLE DOUBT, that the defendant committed the alleged criminal acts. The prosecutor must make an OPENING STATEMENT, present evidence and testimony, and make a closing argument. Both the prosecutor and defense attorney have the right to cross-examine witnesses and to challenge the introduction of certain testimony and other evidence. Ultimately, the court decides what evidence will be admitted into the trial and what evidence will be excluded. If the defendant is convicted, the trial judge imposes a sentence. The prosecutor may make a sentencing recommendation, but the court is not obliged to follow the recommendation.

In theory, a prosecutor's job is not to convict and send to prison as many persons as possible. The basic function of a prosecutor is to seek the truth about criminal actions. Thus, if a prosecutor discovers evidence that puts the defendant's guilt in doubt or relieves the defendant of criminal liability, the prosecutor must turn that evidence over to the defendant. If a prosecutor lacks evidence of a defendant's guilt, he or she must drop the charges or decline to press charges. In practice, prosecutors find that they are judged in the court of public opinion on the number of convictions that they obtain.

In any event, a prosecutor does not decide whether to convict a defendant. That decision is made by the fact finder: either the judge in a bench trial or the jury in a jury trial. The prosecutor only decides whether to charge the defendant and then presents the community's case to the fact finder.

Scholars disagree on the precise historical origins of the U.S. prosecutor. The modern version of the professional prosecutor likely derives from the European practice of vesting one office with the power to conduct criminal prosecutions. In England, private parties could prosecute other private parties until the eighteenth century, but English statutes creating the office of public prosecutor existed as far back as the mid-sixteenth century. In colonial America all 13 colonies established the office and position of attorney general. The colony's attorney general was charged with prosecuting crimes committed within the colony. Private prosecutions were carried out at times, but private prosecution ended around the beginning of the American Revolution in the 1770s. Historians have attributed the rise of the public prosecutor to the cost associated with private prosecutions. Few persons in colonial America had the time or resources to prosecute an alleged criminal.

The primacy of the public prosecutor became entrenched in the 1820s as the U.S. public began to press for the introduction of democracy into the criminal justice process. States began to allow the election of judges, and laws allowing the election of a prosecutor followed shortly thereafter. In 1832 Mississippi became the first state to include a provision in its constitution providing for the election of local prosecutors. Every state entering the Union after 1850 provided for either the election or employment of public prosecutors, and the position is now deeply rooted in the federal and state criminal justice systems.

Originally, public prosecutors were considered mere figureheads in the criminal justice system. Local sheriffs and even coroners had more say in the process than did the prosecutor. This situation changed by the mid-nineteenth century as more and more prosecutors were elected by the public rather than hired by the local government. The powers of the prosecutor gradually increased until the 1920s, when a drastic increase in crime led to heightened public scrutiny of the office and revelations that prosecutors were being corrupted by organized criminals. By the 1940s most states had enacted statutes creating licensing requirements for the office of prosecutor. Under these statutes a person who is not licensed to practice law may not perform the work of the prosecutor even if the person has won the election. Most states also created a regular office of prosecutor instead of hiring private attorneys to work as part-time prosecutors. The power of the prosecutor's office has increased over the years.

In the early 2000s, prosecutors have more authority than ever before. They have the authority to investigate persons, grant IMMUNITY to witnesses and accused criminals, and plea bargain with defendants. Prosecutors decide what criminal charges to bring and when and where a person will answer to those charges. Courts rarely second-guess the decisions of a prosecutor, and all courts presume that a prosecutor has acted appropriately. Furthermore, prosecutors enjoy absolute immunity from suit for their courtroom work. However, they may be liable for suit when their conduct in the investigatory phase of their duties is in dispute. They may be forced to defend against a suit for MALICIOUS PROSECUTION only if they blatantly exceed the powers of their office. A prosecutor who fabricates testimony or other evidence, for instance, may be held liable in a civil suit for malicious prosecution.

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