What's Changing in Prosecution?: Report of a Workshop (2001)

National Academies Press: OpenBook

Chapter: 2 The Role of the Prosecutor

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Suggested Citation:"2 The Role of the Prosecutor." National Research Council. 2001. What's Changing in Prosecution?: Report of a Workshop. Washington, DC: The National Academies Press. doi: 10.17226/10114.

2 The Role of the Prosecutor

T he prosecutor is the principal representative of the state in all matters related to the adjudication of criminal offenses. He has a hand in virtually every decision made in the legal course of every case that comes before the criminal courts. The prosecution function is organized differently at the local and federal levels. In all but two states, each county in the state elects a local prosecutor and, in keeping with the notion of equal access to justice for all citizens, pays the prosecutor from public funds. Most chief prosecutors have complete authority and control over the prosecution policies and practices in their jurisdictions, constrained only by the broad outlines of criminal justice statutes, case law, and court procedures that are under the authority of the judiciary (McCoy, 1998).

U.S. Attorneys serve as the nation's principal federal litigators, under the direction of the Attorney General. They are appointed by the President and confirmed by the Senate. One United States Attorney is appointed to serve in each of 93 judicial districts. As the chief federal law enforcement officer of the United States within his or her jurisdiction, the U.S. Attorney has the responsibility to prosecute criminal cases brought by the federal government; to prosecute and defend civil cases to which the federal government is a party; and to collect debts owed to the federal government that cannot be collected administratively (U.S. Department of Justice, 2001).

The powers of a district attorney (DA) or federal prosecutor arise broadly from statute, case law and procedure, and more specifically from the duties traditional to the prosecutor's office. These activities include

reviewing the charges against any person arrested by the police, deciding whether to charge an individual with an offense and determining what that offense should be. The prosecutor has the authority to offer plea bargains— reducing the seriousness of a charge in return for a guilty plea or for other forms of cooperation with the prosecution. He also conducts the trial for the state and makes sentencing recommendations.

The prosecutor may also play a role at the investigative stage in two important ways. He may provide advisory assistance to the police in an investigation to make sure that the evidence required for conviction is present and that investigators have access to certain tools that the prosecutor controls, such as the grand jury or requests to the court for warrants for searches or electronic surveillance. The prosecutor may also assume some responsibility for the lawfulness of investigative activities.

Using these powers, a traditional prosecutor would say that his chief responsibility is to “see that justice is done” by convicting those who have violated the law by conduct that is widely recognized to be very harmful or immoral. Part of this responsibility is to help create safety for citizens by convicting and thereby isolating those who are dangerous, and to make sure that only the guilty are tried and punished. Only slightly less important is the prosecutor's responsibility to ensure that the investigative and trial processes are lawful and fair. This is especially a responsibility for prosecutors in the United States.

INVESTIGATIVE POWERS

Workshop participants noted that in most civil law countries, the powers enjoyed by U.S. prosecutors traditionally have been divided among several functions within the justice system. For example, most civil law jurisdictions require prosecution if the evidence is sufficient, and require that a judge approve a decision to charge an individual with a crime. Until recently, it was the police who decided what cases to bring in England. In the United States, the decision to either charge or dismiss the case by declining to bring formal charges is within the prosecutor's power and discretion.

In addition, most civil law countries deny investigators powers that we in the United States permit to strengthen evidence in a case. Here, investigators may offer to engage in crime to collect evidence against suspected criminals—for example offering to buy or sell drugs or to engage in prostitution. The United States also permits the use of participant informants, who may themselves be criminals, in the investigation of ongoing criminal

activities; the use of electronic surveillance; offers to provide immunity from prosecution in exchange for testimony; and the compelling of testimony at the investigative stage through the use of the grand jury.

The grand jury is a particularly powerful tool at the disposal of prosecutors in about half of U.S. jurisdictions. A grand jury consists of a group of citizens that hears complaints and accusations brought by the prosecutor in criminal cases. Its duty is to determine whether probable cause exists that a crime has been committed and to decide whether a person should be tried in a court of law for that crime. Secrecy is a requirement of grand jury deliberations in order to protect both the safety of witnesses and the reputation of accused persons in cases where the evidence may not be sufficient for an indictment. In most jurisdictions it is the prosecutor who manages grand jury proceedings and instructs its members in the law's requirements; he thus exerts considerable influence over grand jury decision making.

Countries that forbid these kinds of activities or lack these kinds of powers pay a high price, in that very important types of cases can rarely be made. In the United States, these activities are frequently used in the investigation of organized crime cases, large scope white-collar crimes, and cases of government corruption. One workshop participant described the kind of investigative work conducted by the Manhattan District Attorney's office to investigate, solve, and then prosecute cases related to major frauds in the financial industry. These can be domestic or international cases, often involving billions of dollars, where U.S. banking or securities laws have been violated. Without the investigative tools and other powers at the disposal of the prosecution in this country, many such cases would go undetected.

SETTING PRIORITIES

Workshop participants noted that with the exception of recent technological and scientific advances, the tools that prosecutors use and the way that prosecutions are conducted have changed little over the past 30 years. Changes have occurred, however, in the types of criminal behavior that are seen as warranting substantial attention from prosecutors. Because most chief prosecutors are elected, the political climate in a community plays a large role in their day-to-day activities, and virtually always demands attention to the most serious, generally violent, crimes. But recently, other categories of crime have become priorities too; for prosecutors have the power to influence both public and private conduct through the priorities they

set. In recent years they have used this power to address a variety of social problems, some involving violent street crime, and some previously treated as private or civil matters. Prosecutors' attention to these issues has been stimulated by local advocacy, national policies accompanied by the sudden availability of federal resources, and, occasionally, research. Prominent examples include illicit drug use, youth gun violence, family violence, and drunk driving. Many prosecutors have established special units within their offices that deal solely with these kinds of problems or offenses.

Elected prosecutors also must establish a management framework within their offices that allows these priorities to be carried forward in an orderly and efficient way. In many jurisdictions this requires the ability to supervise a full-time staff of mostly inexperienced, young attorneys. Legal training, however, is not designed to develop this set of skills. Supervision of their support personnel and the development of procedures to guide decisions and activities of both lawyers and staff take management skills and tools. Traditionally, prosecutors have used their intelligence and creativity not to manage, but rather to handle complex matters of law and justice—matters that may be further convoluted by competing community attitudes and local politics. This and their engagement in the U.S. adversarial legal culture persistently orients them to the individual case at the expense of more efficient management strategies.

Prosecutors, however, have a responsibility to think beyond the big case. Several workshop participants asserted that chief prosecutors must be able to elevate their focus to all of the matters under their control that have large consequences for the community and the broader society. Achieving this goal requires attention, not just to individual case organization and management, but also to procedures and office management, including the development and analysis of performance assessment systems, and the development of policies for setting priorities that reflect the public's concerns about community safety and justice. In order to guide selection of management strategies, research is needed on caseloads and other basic, constitutive parts of the prosecutorial function. Moreover, research on the impact of all of these prosecution activities is needed to distinguish policies that result in real improvements from those that may be popular or politically salient but are otherwise ineffective or even harmful.

In thinking about our ability to conduct research on these matters, a number of workshop participants noted that the most dramatic changes in what prosecutors do usually occur in large jurisdictions, or in federal judicial districts that have significant crime, a wide array of social problems

associated with crime, and the prosecution resources to invest in the pursuit of crime. For example, according to the Bureau of Justice Statistics (1998b), in 1996 half the prosecutor's offices nationwide reported employing nine or fewer people. In Indiana over half of the counties with elected prosecutors have a population under 30,000. These counties do not have a lot of crime. Many have only part-time prosecutors. Seemingly new practices such as vertical prosecution (having a single prosecutor handle a case from charging through trial and disposition), or community prosecution, discussed below, are not changes or innovations in these places. They have always had them. These prosecutors are interested in innovation, but they are looking for help with the few but difficult and longstanding problems in their counties, such as domestic violence, or help with rare cases such as a high-profile murder or sexual assault case.

Workshop participants noted that prosecutors have not been in the vanguard of change in criminal justice. When new policies are created they may be introduced incrementally and without a great deal of planning in response to political and public pressures such as follow a wave of violent crime. Two relatively major but unevaluated policy shifts have crept into prosecution practice nationwide in this way beginning in the early 1980s: the trend in plea negotiations to charge the most serious offense that the evidence will support in both adult and juvenile cases; and the practice of shifting local cases, especially drug cases, into the federal system to take advantage of harsher penalties or more lenient trial procedures (Bureau of Justice Statistics, 1998a). Social science is only beginning to explore the implications of these practices, or the impacts of other more superficial changes, such as: the use of new technologies, the creation of special prosecution units, the use of civil remedies in criminal cases, and new models of prosecution based on concepts of community justice. These changes are discussed in the rest of this report.