Prosecutorial Function in the United States

Representation of the interests of the victim and the community in the criminal justice process. The breadth of the prosecutorial function is extensive. Unlike other participants in the criminal process, the prosecutor or district attorney is connected to each of the various stages. The prosecutor has the choice of whether to initiate prosecution. This is a fundamental gatekeeping task. If the decision is made to enter a case into the court, the prosecutor determines which specific charge or charges will be lodged against the defendant. The prosecutor then guides cases through the various steps of the judicial process. It is the prosecutor, for example, who is responsible for establishing a prima facie level case to have a defendant bound over for trial. Once this happens, the prosecutor is responsible for presenting the state’s case at trial. More likely, the prosecutor will engage in negotiations with the defendant in an effort to settle the case. In pursuing plea agreements, the prosecution retains much leverage since the prosecutor can redefine or dismiss particular charges, which constitute the principal variables in plea negotiations. Whether or not sentencing is part of the bargaining process or not, prosecutors also offer sentence recommendations to the court. The prosecutor participates in the appellate process as well. When a defendant appeals, he or she is usually trying to have a conviction set aside. The prosecutor attempts to defend the challenged conviction as properly obtained. Thus, from the time a person is arrested until the case is concluded, the prosecutor possesses wide discretion that can have a direct impact on the outcome of the case and on general criminal justice policy.

See Also

Charge (Criminal Process) Discretion (Criminal Process) Plea Bargaining (Criminal Process);

Prosecuting Attorney ( U.S.).

Analysis and Relevance

The prosecutorial function spans the full length of the criminal justice process. As a result, the prosecutor interacts with each of the participants in the criminal process more extensively than any of the others. Except at the federal level, the prosecutorial function is decentralized in the United States. Federal prosecutors, called United States Attorneys, are all part of an overarching agency, the Department of Justice. Their activities are extensively coordinated through the supervisory authority of the Attorney General of the United States ( U.S.). No parallel structure exists at the state level. Indeed, state attorneys general possess little or no supervising authority over prosecuting attorneys. Rather, prosecuting attorneys are independently elected, usually at the county level. Thus, accountability exists only through the local electoral process. Prosecutorial decisions that lead to prosecution are checked by judges in preliminary hearings or by grand juries. On the other hand, prosecutors have virtually unlimited discretion over those cases for which charges are not commenced. The prosecutor is at the center of the criminal process and plays a decisive role in setting enforcement policies within a jurisdiction. These policies may be explicit and take the form of case screening or plea bargaining guidelines. Often, however, these policies are implicit or indirect. Such policies are established by patterned behavior in certain kinds of cases. A particular prosecutor, for example, may not charge in an insufficient funds case if restitution for a bad check is made. Such a pattern clearly conveys a policy position even though it has not been formalized.

Notes and References

1. Definition of Prosecutorial Function from the American Law Dictionary, 1991, California

Prosecutorial Function

Resources

Further Reading

• Capital punishment and the administration of justice: A trial prosecutor's perspective, Hawkins, Bill, 89: 258-261 (Mar.-Apr. '06, AJS Judicature)
• Cultural considerations in motions and sentencing, Connell, James G, III, 92: 212-215, 248 (6, AJS Judicature)
• Defending death penalty judgments, Gillette, Dane R., 89: 262-264 (Mar.-Apr. '06, AJS Judicature)
• Is justice delayed at the International Criminal Tribunals?, Meernik, James and Aloisi, Rosa, 91: 276-287 (May-Jun '08, AJS Judicature)
• Loose language (letter), Cohn, Avern, 91: 56 (Sep-Oct '07, AJS Judicature)
• Questions for the candidates, Editorial, AJS, 91: 108-109,134 (Nov-Dec '07, AJS Judicature)
• A rescue plan for the Justice Department (editorial), No, Author, 92: 144, 177 (4, AJS Judicature)
• When cultural tradition and criminal law collide: Prosecutorial discretion in cross-cultural cases, Kenny, Karyn, 92: 216-219 (5, AJS Judicature)