Criminal Law

The Prosecutor’s Job

By Janet Portman, Attorney
From investigation of crimes to handling post-conviction appeals and writs, the prosecutor’s job is to do justice.

Prosecutors are lawyers who investigate, charge, and prosecute (take to trial) people whom they think have committed a crime. In the federal system, United States Attorneys are appointed by the President to run regional offices; they in turn hire assistant prosecutors. Prosecutors in the states are known as district attorneys, state attorneys, or have other similar names. They may be appointed by the executive branch (the governor) or elected by the voters. Prosecutors also represent the government when convicted defendants appeal their convictions to a higher court.

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 he may be to the suffering of a victim, the prosecutor is not the victim’s lawyer. Instead, the prosecutor’s duty is to serve the cause of justice. The prosecutor’s true client is justice itself, which means that the prosecutor must exercise discretion (sound judgment) at every step in a criminal investigation and trial, and beyond. The sections below illustrate how discretion infuses the prosecutor’s decisions.

The Prosecutor’s Role During 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 can also negotiate a plea with a suspect who, in exchange for pleading guilty to a lesser crime and agreeing to testify against others, will be rewarded with a light sentence. All of these decisions involve the prosecutor’s judgment.

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.

Practical considerations come into play, as well. The American Bar Association’s Standards for Criminal Justice identify these factors that may be at work when prosecutors make charging decisions:

  • the prosecutor’s reasonable doubt that the accused is guilty
  • the extent of the harm caused by the offense
  • whether the punishment is disproportionate to the harm caused by the offense
  • any improper motives of victims or complaining witnesses
  • whether the accused is cooperating with law enforcement towards the apprehension of others, and
  • whether another jurisdiction will step up and prosecute (some crimes can be prosecuted in either the federal or state systems).

Plea Bargaining

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 agrees to ask for a specific sentence (in some courts, the judge is part of the bargain, agreeing in advance to impose the agreed-upon sentence). The defendant avoids the risk of ending up with more convictions and a harsher sentence; the prosecutor avoids the risk of losing the case altogether, and resolving the case removes it from the prosecutor’s busy schedule (not an insignificant factor).

Prosecutors have broad leeway when negotiating a plea. It’s not uncommon for a prosecutor to deliberately charge a more serious crime in order to set the stage for a plea to a lesser one—a practice that’s decried in principle but widespread nonetheless.

The Prosecutor’s Role at Sentencing

While it’s the court’s role to impose a sentence, that sentence (a specific sentence or a range) is set by the offense that the defendant stands convicted of. Consequently, the judge will be constrained by the charges that the prosecutor has elected to bring against the defendant. 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 initial charging decision.

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, with out-of-custody provisions if at all possible, 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 and can arrive at their own conclusions, as long as they are considered and reasonable. But strong pressure from the prosecutor often plays a part.

The Prosecutor’s Post-Conviction Role

Most defendants who are convicted of felonies appeal their convictions. They hire counsel or obtain counsel from the state; and 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 newly-discovered evidence, as a reason to overturn their convictions. State prosecutors respond to these filings, also.

Most criminal appeals and writs are lost by the defendants, and most are handled routinely by the prosecutor’s office. But now and then the prosecutor, when examining the arguments put forth by the appellant, decides that the appeal or the writ has merit. Since the advent of DNA testing, successful writs in particular have increased in number. Once again, it’s a matter of discretion and judgement for a prosecutor to say, “This appeal should be granted,” or “This new evidence changes everything.”

What Restrains the Prosecutor’s Discretion?

Not much, but here’s a run-down of how abusive prosecutors can be brought to heel:

  • When prosecutors violate the Constitution. Courtesy of our system of checks and balances, the prosecution (a distinct arm of government from the courts) does not answer to a judge. Prosecutors do, however, answer to the state and federal Constitutions, which makes them subject to the requirement that they act within the requirements of due process and equal protection of the law (for example, a prosecutor cannot charge someone, or recommend a particular sentence, because the defendant is a member of a certain race, religion, ethnicity, and so on). Because there’s a presumption that the prosecutor is acting properly, it is very difficult for defendants to win claims of unconstitutional treatment.
  • Legislatures can change the underlying laws. Of course, 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.
  • 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.
  • Fire them or vote them out. Last but not least, 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.

Questions for Your Attorney

  • I think the prosecutor has overcharged my case. How can we argue that in court? What do we have to prove?
  • Does a prosecutor have to bring charges when the victim demands it? What if the victim objects to charges being filed—will this end the matter?
  • I think the result in my case was unjust. How can we raise that on appeal?

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