A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in civil law. The prosecution is the legal party responsible for presenting the case in a criminal trial against the defendant, an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.
Prosecutor as a legal professional Prosecutors are typically lawyers who possess a law degree and are recognised as suitable legal professionals by the court in which they are acting. This may mean they have been admitted to the bar or obtained a comparable qualification where available, such as solicitor advocates in England law. They become involved in a criminal case once a suspect has been identified and charges need to be filed. They are employed by an office of the government, with safeguards in place to ensure such an office can successfully pursue the prosecution of government officials. Multiple offices exist in a single country, especially in those countries with federal governments where sovereignty has been bifurcated or devolved in some way.
Since the power of the state backs prosecutors, they are subject to special professional responsibility rules in addition to those binding all lawyers. 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." Not all U.S. states adopt the model rules; however, U.S. Supreme Court cases and other appellate cases have ruled that such disclosure is required. Typical sources of ethical requirements imposed on prosecutors come from appellate court opinions, state or federal court rules, and state or federal statutes (codified laws).
Directors of public prosecutions In most Commonwealth Nations, the head of the prosecuting authority is known as the director of public prosecutions (DPP) and is appointed, not elected. A DPP may be subject to varying degrees of control by the attorney general, a formal written directive which must be published.
In Australia, the Offices of the Director of Public Prosecutions institute prosecutions for indictable offences on behalf of the Crown.See Director of Public Prosecutions Act 1983 (Cth). At least in the case of very serious matters, the DPP will be asked by the police, during the investigation, to advise them on the sufficiency of evidence and may well be asked to prepare an application to the relevant court for search, listening device or telecommunications interception warrants.
More recent constitutions, such as South Africa's, guarantee the independence and impartiality of the DPP.
Common law jurisdictions
Australia Prosecutors in Australia come in a few distinct species. Prosecutors of criminal cases in lower courts are sometimes police officers with a traineeship in prosecution and advocacy; admitted lawyers may also be appointed. Crown Prosecutors are always lawyers and typically barristers, and they represent the state or Commonwealth in criminal proceedings in higher courts, such as the County or District Courts, or Supreme Court. Aside from police prosecutors and Crown prosecutors, government agencies have the authority to appoint non-lawyers to prosecute on their behalf, such as RSPCA Inspectors.
Canada In Canada, public prosecutors in most provinces are called Crown Attorney or Crown Counsel. They are generally appointed by the provincial Attorney General.
England and Wales The prosecution landscape in England and Wales is highly varied, meaning that a prosecutor can refer to a number of different individuals and roles.
Types of prosecutor The primary prosecutor in the jurisdiction is the Crown Prosecution Service (CPS), which is led by the Director of Public Prosecutions (DPP). The CPS prosecutes on behalf of the Crown and also takes forward prosecutions originating from police investigations. Text was copied from this source, which is available under an Open Government Licence v3.0 . © Crown copyright. While the DPP must be a suitably qualified lawyer under section 71 of the Courts and Legal Services Act 1990, the DPP does not take on cases themselves and instead plays an administrative and leadership role. In this way, while the DPP may be referred to as a prosecutor, the individual in the role would not take any cases to court. The DPP is appointed by His Majesty's Attorney General for England and Wales, and the Attorney General also has supervisory authority as the sponsor of the CPS; however, the CPS is an independent body and the Attorney General cannot direct particular prosecutions. Unlike in the United States and other jurisdictions, the Attorney General is not a prosecutor in England and Wales. Instead, the role is a political office of the chief legal advisor to the executive.
Crown Prosecutors are lawyers who work for the CPS. They are responsible for researching, advising police investigations, preparing cases for trial and sometimes presenting the case at trial. These lawyers may also be referred to as prosecutors. A number of other bodies have authority to bring prosecutions in England and Wales, including the Serious Fraud Office (SFO), Service Prosecuting Authority (SPA), and Financial Conduct Authority (FCA). These organisations and their legal representatives may be called prosecutors. This is the same for any person, organisation, or their representatives during a private prosecution. Finally, when cases are brought to trial, a barrister or solicitor with higher rights of audience may present the case before a magistrate or a judge (with or without a jury). In these instances, referring to the prosecutor would refer to the lawyer conducting the case during trial. In most serious offences, the CPS or other prosecuting authority will instruct a barrister to represent them. In the most serious cases, this may be a King's Counsel, and barristers may work in teams with a leader directing juniors. Unlike in the United States, these prosecuting barristers will work on a case-by-case basis, and so may also engage in defence work; they will not be employed solely to undertake prosecution advocacy.
Approach of the CPS to prosecutions Crown Prosecutors are bound by a strict code of conduct, known as the Code for Crown Prosecutors, which governs how cases are charged and trials conducted. This fundamental code is supported by a range of other policies, most notably the Director's Guidance on Charging. The first stage in prosecuting a case is deciding to charge the suspect, and it is this process which begins the prosecution. The CPS has the authority to decide whether a person is charged in all offences. However, the police may charge all summary offences, and either-way offences when there is an anticipated guilty plea. The nature of the offence is suitable for sentence in the magistrates' court. Text was copied from this source, which is available under an Open Government Licence v3.0 . © Crown copyright.
In order to charge, the circumstances must meet the Full Code Test. In some urgent cases, a lower Threshold Test can be applied to get a charge quickly; however, the Full Code Test must then be applied at the earliest opportunity. The Full Code Test has two stages; both parts are equal and must be met before a prosecution can be brought. +Full Code TestEvidential Stage Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. The finding that there is a realistic prospect of conviction is based on the prosecutor's objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial, and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.Public Interest StageIn every case where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution. +Threshold TestThere are reasonable grounds to suspect that the person to be charged has committed the offenceProsecutors must be satisfied, on an objective assessment of the evidence, that there are reasonable grounds to suspect that the person to be charged has committed the offence. The assessment must consider the impact of any defence or information that the suspect has put forward or on which they might rely.
In determining whether there are reasonable grounds to suspect, prosecutors must consider all of the material or information available, whether in evidential format or otherwise. Prosecutors must be satisfied that the material to be relied on at this stage is capable of being:
put into an admissible format for presentation in court; reliable; and credible.Further evidence can be obtained to provide a realistic prospect of convictionProsecutors must be satisfied that there are reasonable grounds to believe that the continuing investigation will provide further evidence, within a reasonable period of time, so that when all the evidence is considered together, including material which may point away from as well as towards a particular suspect, it is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.The seriousness or the circumstances of the case justifies the making of an immediate charging decisionThe seriousness and the circumstances of the case should be assessed in relation to the alleged offending and should be linked to the level of risk created by granting bail.There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do soThis determination must be based on a proper risk assessment, which reveals that the suspect is not suitable to be bailed, even with substantial conditions. For example, a dangerous suspect who poses a serious risk of harm to a particular person or the public, or a suspect who poses a serious risk of absconding or interfering with witnesses. Prosecutors should not accept, without careful enquiry, any unjustified or unsupported assertions about risk if release on bail were to take place.It is in the public interest to charge the suspectProsecutors must apply the public interest stage of the Full Code Test based on the information available at that time. The Threshold Test must be kept under proactive and continuous review, and should only be used in rare and urgent circumstances.
Prosecutions by other government agencies