Prosecutor
From Free net encyclopedia
Template:Globalize The prosecutor is the chief legal representative of the prosecution in countries adopting the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case against an individual suspected of breaking the law in a criminal trial.
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Common law jurisdictions
Prosecutors are typically lawyers who possess a university degree in law, are recognized as legal professionals by the court in which they intend to represent the state, and, in countries where the distinction is made, are barristers or advocates. They usually only become involved in a criminal case once charges need to be laid. They are typically employed by an office of the government with safeguards in place to ensure such an office can successfully pursue the prosecution of government officials. Often multiple offices exist in a single country due to the various legal jurisdictions that exist.
Being backed by the power of the state, prosecutors are usually subject to special professional responsibility rules in addition to those binding all lawyers as a whole. For example, in the United States, Rule 3.8 of the ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information ... that tends to negate the guilt of the accused or mitigates the offense."
Directors of Public Prosecutions
In England and Wales, Northern Ireland, Australia, Hong Kong and Canada the director of any such office is typically known as the Director of Public Prosecutions and is appointed (as opposed to elected).
In Australia at least, in the case of very serious matters, the DPP will be asked by the police during the course of the investigation to advise them on sufficiency of evidence and may well be asked, if he or she thinks it proper, to prepare an application to the relevant court for search, listening device or telecommunications interception warrants
United States
In the United States the director of any such offices may be known by any of several names depending on the legal jurisdiction (e.g. County Attorney, County Prosecutor, State Attorney, State's Attorney, State Prosecutor, Commonwealth's Attorney (in Virginia and Kentucky), District Attorney, City Attorney, City Prosecutor or U.S. Attorney) and may be either appointed or elected.
Unlike a defense attorney, a U.S. prosecutor's primary role is to seek justice rather than to prevail. Thus, a U.S. prosecutor's goal is not always a trial conviction. Most criminal prosecutions in the United States, therefore, are settled by a plea agreement. The prosecutor and the defense decide to forego the inherent risks of trial and compromise. This process usually results in the defendant tendering a plea of guilt (or no contest) to either a lesser charge, or to the charged offense with a joint recommendation to the judge of a more lenient sentence than the defendant would have received following a guilty verdict at trial. The defendant benefits by a known outcome and a probable lesser sentence; the prosecution benefits by a known outcome and the expenditure of less time and resources. Most prosecutors will not "plea bargain" certain types of cases.
However, the plea bargain or even the decision to charge a defendant initially can have dire effects on a defendant. While an indictment will not necessarily lead to a state sanction such as imprisonment, the charge itself may have serious ramifications, such as a loss of a job due to inability to pay bail, loss of public housing, and social stigma. Such effects are termed the collateral consequences of criminal charges.
Scotland
Though Scotland has a common law system (see Scots law), its heritage in civil law leads to a situation more reminiscient of a civil law jurisdiction. Here all prosecutions are carried out by Procurators Fiscal and Advocates Depute on behalf of the Lord Advocate, and, in theory, they can direct investigations by the police. In very serious cases a Procurator Fiscal, Advocate Depute or even the Lord Advocate may take charge of a police investigation. It is at the discretion of the Procurator Fiscal, Advocate Depute or Lord Advocate to take a prosecution to court and to decide on whether to prosecute it under solemn procedure or summary procedure. Other remedies are open to a prosecutor in Scotland, including fiscal fines and non-court based interventions such as rehabilitation and social work. All prosecutions are handled within the Crown Office and Procurator Fiscal Service. Procurators fiscal will usually refer cases involving minors to Children's Hearings, which are not courts of law, but a panel of lay members empowered to act in the interests of the child.
Civil law jurisdictions
Prosecutors are typically civil servants who possess a university degree in law and additional training in the administration of justice. In some countries, such as France, they belong to the same corps of civil servants as the judges.
Brazil
In Brazil, the public prosecutors form a body of autonomous magistrates, working both at the federal level and state level. The procuradores da República, the federal prosecutors, are known as "procuradores da República" (federal prosecutors), "procuradores regionais da República" (prosecutors who officiate at the federal appeals courts), "subprocuradores gerais de República" (prosecutors who officiate at the superior federal courts) and Procurador Geral da República, who heads the federal body and tries cases before the Supremo Tribunal Federal-STF, Brazil's highest court, in charge of judicial review and the judgement of criminal offenses perpetrated by federal legislators, members of the cabinet and the President of Brazil. At the state level, the career is divided in "promotores de Justiça substitutos"(substitute prosecutors), "promotores de Justiça" (prosecutors) and "Procuradores de Justiça" (prosecutors officiating before the states' court of appeals). There are also military prosecutors whose career, althoug linked to the federal prosecutors, is divided in a manner similar to state prosecutors. In Brazil the prosecutors' main job is to promote justice, which means they have the duty of, not only trying criminal cases, but, if during the trial they become convinced of a defendant's innocence, requesting the judge to aquitt him. Although empowered by law to do so, the prosecutors conduct criminal investigations only in major cases, usually envolving police or public officials' wrongdoings. Also, they are in charge of supervising police work and ordering the police to take the measures seemed needed by the prosecution to conclude the inquiries. The power of individual prosecutors to hold criminal investigations is controversial and, although massively supported by judges, prosecutors and the general population, it is being contested before the constitutional court- STF.
France
In France, the prosecutor, or Procureur de la République (or Procureur Général in an Appeal Court or Avocat Général in the Court of Cassation) is assisted by deputies (substituts). He opens preliminary enquiries, and if necessary asks for the nomination of an investigating magistrate (a Juge d'Instruction) to lead a judiciary information. In the case of an information led by a judge, the prosecutor does not lead the enquiries, but simply lays down the scope of the crimes that the judge and law enforcement forces investigate upon; he may, like defense attorneys, request or suggest further enquiries. During a criminal trial, the prosecutor has to lay the case in front of the trier of fact (judges or jury). He generally suggests a certain sentence, which the court has no obligation to follow — the court may decide on a higher or lower sentence. The procureur has also some other duties regarding more generally the administration of justice.
Germany
In Germany, the Staatsanwalt (literally 'state attorney') does not just have the "professional responsibility" (as mentioned above) not to withhold exculpatory information, but is required by law to actively determine such circumstances.
Bibliography
- Raoul Muhm , Gian Carlo Caselli (Hrsg.) :
Die Rolle des Staatsanwaltes Erfahrungen in Europa - Il ruolo del Pubblico Ministero Esperienze in Europa - Le role du Magistrat du Parquet Expériences en Europe - The role of the Public Prosecutor Experiences in Europe - Vecchiarelli Editore Manziana (Roma) 2005 ISBN: 88-8247-156 - X
- Raoul Muhm : The role of the Public Prosecutor in Germany
in : The Irish Jurist | Volume XXXVIII | New Series 2003 , The Law Faculty, University College, Dublin http://www.larchivio.org/xoom/raoulirish.htm
http://www.larchivio.com/diritto.htm
External link
- www.prosecutor.info indexes over 2,900 prosecutor web sites throughout the USA and other countries.da:Anklager
de:Staatsanwalt ja:検察官 nn:aktor no:Påtalemyndighet pl:Prokuratura zh:檢察官