Prosecutors are government lawyers who investigate, charge, and prosecute (take to trial) people whom they think have committed a crime. In the federal system, these prosecutors are called U.S. Attorneys and Assistant U.S. Attorneys. Prosecutors in the states are known as district attorneys, state attorneys, or have other similar names. This article will review a prosecutor’s duties and responsibilities and who they answer to.
What Does a Prosecutor Do?
In a nutshell, a government prosecutor’s job is to seek justice for criminal wrongs committed against victims and society. They work for a local, a state, or the federal government. On a daily basis, prosecutors are investigating and charging crimes, negotiating plea deals, and trying cases in court. This means they are meeting with investigators, victims, witnesses, and defense attorneys. Prosecutors have an ethical duty to only file criminal charges in cases that they believe they can prove. They are stewards of public resources and must not bring frivolous, vindictive, or malicious cases.
Who Does the Prosecutor Represent?
Although a prosecutor regularly deals with police officers, witnesses, and victims, the prosecutor’s primary obligation is not to serve the interests of these parties. However sympathetic to the suffering of a victim, the prosecutor is also not the victim’s lawyer.
Instead, prosecutors work for the government (local, state, or federal), and their duty is to serve the cause of justice. If you look at a criminal case, the cases name will be referred to as:
- People of California v. Jane Defendant
- State of Minnesota v. John Defendant
- United States v. Joe Defendant
Because the prosecutor’s true client is justice itself, they must exercise discretion (sound judgment) at every step in a criminal investigation, trial, and beyond. The sections below illustrate how discretion infuses a prosecutor’s decisions.
The Prosecutor’s Role in Criminal Investigations
Prosecutors do more than file charges based on police reports of crimes that have been committed. Often, they actively participate in the investigation of past or ongoing crimes, particularly in cases involving business fraud, public corruption, and organized crime (including drug rings). For example, they may design “sting” operations, ask for search warrants to obtain evidence, order physical surveillance of suspects, ask people to provide fingerprints, or send agents to interview witnesses or suspects.
The Prosecutor’s Role in Charging Crimes
The prosecutor decides which crimes to charge. The most important check on this power is the requirement that the accusations be supported by “probable cause”—the legal standard that will spare a person from prosecution unless it’s more likely than not that a crime was committed and the defendant committed it. But even with this check, the prosecutor has considerable power to choose which, and how many, crimes to charge.
The American Bar Association’s Standards for Criminal Justice identify these factors that may be at work when prosecutors make charging decisions:
- the strength of the case
- the prosecutor’s reasonable doubt that the accused is guilty
- the extent of the harm caused by the offense
- whether the possible punishment fits the crime
- any improper motives of victims or complaining witnesses
- any improper conduct by law enforcement
- whether the accused is cooperating with law enforcement, and
- whether another jurisdiction will step up and prosecute (some crimes can be prosecuted in either the federal or state systems).
Practical considerations come into play, as well. Among them are:
- the sheer number of criminal statutes; prosecutors couldn’t possibly enforce them all and must decide which ones are most important in light of limited resources
- the limited number of prosecutors, courts, and jail or prison capacity
- the unique character of the case—the credibility of witnesses, willingness of the victim to testify, a defendant’s remorse or not.
The Prosecutor’s Role in Court
For cases that make it to court, the prosecutor will need to present the case to the judge and jury. Before trial starts, prosecutors must present information and arguments to the court regarding bail decisions and evidentiary issues. Sometimes, after pretrial issues have been resolved, the case might be resolved by plea bargain (discussed below). Other cases may go to trial where the prosecutor has the burden of proving all the elements of the criminal charges beyond a reasonable doubt.
The Prosecutor's Role in Plea Bargaining
Prosecutors have broad leeway when negotiating a plea. In most federal and state courts, prosecutors and defense counsel have a conversation at some point about “settling this matter.” In exchange for a guilty plea (sometimes to a specific crime), the prosecutor might agree to ask for a specific sentence or drop certain charges. The defendant may accept the deal to avoid the risk of ending up with more convictions and a harsher sentence. And the prosecutor avoids the risk of losing the case altogether. Plus, resolving the case removes it from the prosecutor’s busy schedule (not an insignificant factor).
The Prosecutor’s Role in Sentencing
After a conviction, it's the judge's job to sentence the defendant. But the prosecutor still plays an important role in how the sentencing plays out.
A prosecutor's charging decisions set the stage for the conviction and sentencing. The law defines the offense and its punishment, and the judge must sentence within the confines of the law for the convicted offense. Even if the defendant beats some of the charges or ends up convicted of lesser offenses, the court’s power has been circumscribed to some degree by the prosecutor's initial charging decision.
And, when an offense carries a range of sentences, it’s up to the prosecutor (and often a probation officer) to recommend a specific sentence to the court. Typically, the defense will argue for a lighter sentence, and the prosecutor will counter with a demand that the defendant serve more time. Most of the time, judges are not bound by these arguments, but strong pressure from the prosecutor often plays a part.
The Prosecutor’s Role After a Conviction
Most defendants who are convicted of felonies appeal their convictions. The appellate division of the prosecutors’ offices handles the case for the government, arguing that the conviction and sentence should be upheld on appeal. Occasionally, defendants file writs of habeas corpus, in which they allege incompetence of their trial counsel or try to present newly-discovered evidence, as a reason to overturn their convictions. State prosecutors respond to these filings, also.
Who Do Prosecutors Answer To?
Prosecutors who abuse their discretion can face repercussions, although the options aren't always obvious. An aggrieved person may:
- Ask for a legal remedy. Prosecutors are subject to state and federal constitutions, which require them to uphold due process rights and equal protection of the law (for example, a prosecutor cannot present false evidence or discriminate during jury selection). Although difficult to win, defendants can bring claims of unconstitutional treatment.
- Refer them to professional disciplinary bodies. Prosecutors are generally immune from prosecution for their advocacy decisions, but they are still subject to rules of professional conduct. Bodies, like their state bar agencies and the Department of Justice’s Office of Professional Responsibilities, examine claims of prosecutorial misconduct and poor judgment.
- Initiate an internal review. Though some might see this as an ineffectual attempt for an office to “police itself,” this avenue might have merit and get results.
- Vote them out and push for their firing. Prosecutors can be removed if they are viewed as abusing their discretion. Those who stand for office can be voted out, and those who are appointed by the executive branch of government (such as the President or a governor) can be fired.
- Ask the legislature to change the underlying laws. Legislatures write the laws (complete with sentences) that the prosecutors charge, and if it appears that a particular statute is being improperly charged, the legislature (and the executive, who signs the law) can change it.
Questions
If you have questions regarding a prosecutor's conduct in handling a criminal matter, speak to a lawyer. You might also find helpful information from your state's professional responsibility board.