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The Role of The Prosecutor

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Jason Scully-Clemmons

on 27 January 2016

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Transcript of The Role of The Prosecutor

The Role of the

Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
The prosecutor is an independent administrator of justice. The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected.
1-1.1 Primary Responsibility
1-1.2 Societal and Individual Rights and Interests
A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client. A prosecutor should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases. A prosecutor should seek to reform criminal laws whenever it is appropriate and necessary to do so. Societal interests rather than individual or group interests should also be paramount in a prosecutor’s efforts to seek reform of criminal laws.

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided on the basis of sufficient evidence."
Rule 3.8, Special Responsibilities of a Prosecutor

(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
Steps in the Criminal Justice System
1. Investigation
2. Screening/Charging
3. District Court Proceedings
4. Grand Jury
5. Circuit Court Proceedings
INVESTIGATION is primarily a Law Enforcement function. ADAs are involved to:
Render requested assistance (e.g. provide legal advice, search warrant assistance, etc.).
Assist in initial screening/charging decision if necessary.
Request gathering of specific evidence needed for prosecution.
SCREENING & CHARGING are quintessential prosecutorial functions.
Within MDT.
After/Outside MDT. Cases evolve after the MDT process (e.g. Emerson, Stephenson, etc.)
NDAA National Prosecution Standards 4-1.1 & 4-2.1 make it clear that it is the prosecutor who must decide whether, which, and against whom criminal charges should be brought. Standard 4-1.6 imposes on the prosecutor a continuing duty to evaluate her/his cases in light of new/changed information.
In the Madison County DA's Office's Family Violence & Sexual Assault Unit, almost all case screening and charging decision-making on child victim cases takes place as part of the MDT process. However, it should be noted that domestic violence cases and adult sex crimes cases are also handled by our unit and are screened and charged without a similar process.
The prosecutor is ethically and professionally obligated to consider a number of factors in her/his ongoing evaluation of the case. NDAA National Prosecution Standards 4-1.3 & 4-2.4 outline many of those factors (e.g.
impact on victim
insufficiency of admissible evidence
probability of conviction
vulnerability of victim
, etc.). When taken as a whole, these factors can be summarized as follows: can the prosecutor prove by
admissible evidence
her or his case
beyond a reasonable doubt
to a
reasonable jury
"We are frequently requested by victims to file a particular case even though we know we cannot prove it. They simply want the defendant to face their accusations in court. If you do not feel that you can in good faith go forward with a provable case, you must explain to the victim the ethical implications of your decision not to prosecute."
- Dennis Nicewander
DISTRICT COURT PROCEEDINGS in felony cases require an ADA's participation in two primary contexts:
Preliminary Hearings: A hearing to find probable cause; can be based on 1 witness. Hearsay allowed.
Bond hearings: Requests by either the State or Defense to raise, lower, or otherwise modify the conditions of Defendant's pretrial release.
THE GRAND JURY is, in theory, independent and capable of returning indictments, or not, as it sees fit. In reality, it is a tool of the prosecutor.
True Bill vs. No Bill
NDAA National Prosecution Standard 4-8.1
4-8.1 Prosecutorial Responsibility
To the extent permitted by the jurisdiction's laws or rules, a prosecutor appearing before a grand jury:
a. May explain the law and express his or her opinion on the legal significance of the evidence;
b. Should assist the grand jury with procedural and administrative matters appropriate to its work;
c. May recommend that specific charges be returned;
d. Should recommend that a grand jury not indict if the prosecutor believes that the evidence presented does not warrant an indictment under governing law, and he or she should encourage members of the grand jury to consider the fact that sufficient evidence must exist to enable the prosecutor to meet the state's burden of proof at trial;
e. Should take all necessary steps to preserve the secrecy of the grand jury proceedings.
CIRCUIT COURT PROCEEDINGS are the culmination of the prosecutor's role.
Plea Negotiations
Trial Preparation
Rule 16 of the Alabama Rules of Criminal Procedure governs the discovery process in criminal cases. In summary, the Defendant is entitled to: (1) copies of any and all written or oral statements the Defendant made to law enforcement; (2) statements of the same kind made by any Co-Defendant; (3) physical or documentary evidence that the State intends to use at trial or which was obtained from the Defendant; (4) reports by experts; and (5) any and all exculpatory information.
The prosecutor is under no obligation to enter into a plea agreement that has the effect of disposing of criminal charges in lieu of trial. However, where it appears that it is in the public interest, the prosecution may engage in negotiations for the purpose of reaching an appropriate plea agreement. When agreement is reached, it should be reduced to writing, if practicable.
5-1.1 Propriety
Trial preparation consists of these main components:
Deeper familiarization with the evidence & potential defenses;
Preparing victims/lay witnesses;
Preparing professional witnesses (e.g. law enforcement, DHR, medical personnel, forensic interviewers, other professionals/experts);
Motions in limine & other pretrial motions.
During discovery, plea negotiation, and trial preparation the case continues to evolve, and the State learns more about the case than is possible at earlier stages. As noted previously, prosecutors have an ongoing duty to evaluate the strengths and weaknesses of their cases and to determine just outcomes, measured both in terms of substantive and procedural justice.
The Prosecutor in Trial
In Voir Dire, attorneys are permitted to converse with prospective jurors to try to eliminate jurors who, for one reason or another, seem unlikely to be fair to their respective clients.
Voir Dire by State
Voir Dire by Defense
Strike Conference
Cause Challenges
Peremptory Challenges (must not be based on race, gender, etc.)
1. Voir Dire
2. Opening Statement
3. State's Evidence
4. Defense Evidence
5. Charge Conference
6. Closing Arguments
The prosecutor's Opening Statement encapsulates the upcoming evidence by the State in a coherent fashion to make the jury receptive to and interested in that evidence. While Openings are not argument, they are, if properly done, persuasive.
The presentation of the State's case in chief is accomplished by the presentation of admissible evidence. There are two kinds of evidence:
Testimonial Evidence (prosecutor conducts direct examination and defense cross examines with objections from the State when appropriate).
Physical Evidence (when available; usually presented during testimonial evidence of a witness who can testify about the physical evidence in question).
Because the State has the burden of proving the charges against the Defendant beyond a reasonable doubt, the Defense may or may not put on testimony or physical evidence. Because of the Fifth Amendment privilege against self-incrimination, a Defendant may choose to testify or not, but his/her choice not to testify may not be held against him/her. If the Defense does put on evidence of any kind, the prosecutor is tasked with cross examining defense witnesses and objecting when appropriate.
State's First Closing
Defense Closing
State's Second Closing
In Closing Argument, the prosecutor outlines for the jury how and why the State has proven its case beyond a reasonable doubt.
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