PART 2 - CHAPTER 5 The Prosecutor's Role in Initiating Cases

• Jurisdiction: United States

Chapter 5 The Prosecutor's Role in Initiating Cases

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ List the various titles given to prosecuting attorneys at the federal, state, and local levels, in addition to describing the role that they play in the criminal justice system.
■ Discuss the ethical obligations imposed on prosecuting attorneys.
■ Explain the various ways in which prosecuting attorneys can be involved in investigations into potential criminal behavior.
■ Identify the various ways in which people can be charged with crimes and the role played by prosecuting attorneys in drafting criminal complaints, indictments, and informations.

INTRODUCTION

This chapter focuses on the activities of prosecuting attorneys ("prosecutors") and the paralegals who work for them during the investigative and charging stages of criminal cases. We will turn our attention to defense attorneys in Chapter 6. Before you read further, it would be good to go back and review Figure 4.1 on page 92 to familiarize yourself with the stages of the criminal justice system that occur between an arrest and the start of a trial.

A. WHO THEY ARE AND WHERE THEY WORK

Depending upon which governmental unit employs them, prosecuting attorneys have titles such as U.S. Attorney, State's Attorney, District Attorney, or City Attorney, as well as Assistant U.S. Attorney, Assistant District Attorney, and other positions. While their powers differ, they are all attorneys who are employed (either full or part time) to represent the public at large in court proceedings involving violations of the criminal code.¹

The primary duties of prosecuting attorneys are to supervise and advise law enforcement agencies and grand juries in criminal investigations, decide whether to charge a suspect with a crime, determine the appropriate charge, and present the government's case in court proceedings.

1. FEDERAL PROSECUTORS

United States Attorneys prosecute violations of federal law.² They are federal employees of the U.S. Department of Justice who report to the U.S. Attorney General. They are appointed by the president with the advice and consent of the senate and continue in office at the pleasure of the president. Currently, there are 93 U.S. Attorneys who are assigned to 94 specific judicial districts over which they serve as the chief federal law enforcement officer.³ They have a support staff of Assistant U.S. Attorneys, paralegals, and clerical workers.

The number of attorneys in their offices and the scope of their geographic authority vary greatly. For instance, the U.S. Attorney's Office for the Southern District of New York has more than 220 Assistant U.S. Attorneys in its Criminal Division.⁴ It has authority over seven counties, plus the boroughs of the Bronx and Manhattan in New York City. In contrast, the Criminal Division for the District of Wyoming consists of a criminal chief and 13 Assistant U.S. Attorneys.⁵ This office is responsible for federal law enforcement for the entire state of Wyoming.

2. STATE AND LOCAL PROSECUTORS

While their titles differ, states have similar types of prosecuting attorneys enforcing violations of criminal law. They are known as district attorneys,⁶ prosecuting attorneys,⁷ state's attorneys,⁸ state attorneys,⁹ county prosecutors,¹⁰ county attorneys,¹¹ commonwealth's attorneys,¹² solicitors,¹³ and attorneys general.¹⁴ In addition, some municipalities have city prosecutors who litigate local ordinance violations. Attorney generals, district attorneys, and states' attorneys are usually elected officials. They then appoint their assistants. Municipal attorneys are usually appointed by local government officials. Depending on the type of governmental unit, state and local prosecutorial positions may be full time or part time.

State and local prosecutors' offices vary in the size and scope of their geographic authority. Most state prosecutors' offices have divisions for handling certain types of cases, such as felony, misdemeanor, traffic, and juvenile. Many larger offices have specialized units for such matters as drug prosecutions, hightech crime, gang activity, asset forfeiture, auto theft, and arson. Small, rural offices are staffed by the supervising public official, a few deputy attorneys, and clerical staff. Because of staffing limitations, these offices typically do not have divisions or specialized units.

APPLICATION EXERCISES
1. Research the number and locations of the federal district courts in your state to find out how many districts are in your state, the cities where the courthouses are located, and the name and background of the current U.S. Attorney for each district.

2. Research the titles and locations of the different types of prosecuting attorneys in your state. Are they elected or appointed? If they are appointed, who appoints them?

B. ETHICAL RESTRICTIONS APPLICABLE TO PROSECUTING ATTORNEYS

All attorneys, regardless of the nature of their practice, are subject to ethical rules established and enforced by state supreme courts or bar associations. Although the format and content of these ethical rules vary from state to state, they typically follow the general principles set out in the American Bar Association (ABA)'s Model Rules of Professional Conduct.

In the preface to these model rules, the ABA states that they are designed to ensure the highest standards of professional competence and ethical conduct within the legal profession. The rules impose ethical limitations on how prosecuting attorneys can obtain convictions.

ETHICAL OBLIGATIONS SPECIFIC TO PROSECUTING ATTORNEYS
All attorneys are expected to be effective advocates for the interests of their clients, but what does that mean when, as in the case of prosecuting attorneys, the client is the people of the state or the people of the United States? Is it necessarily in the people's interest to prosecute every crime, regardless of the cost, or to seek the maximum sentence for everyone convicted of a crime?
Even if prosecutors had enough budgetary resources to seek as many convictions as possible, the Model Code imposes various ethical limitations on the means by which they can obtain those convictions. Rule 3.8 of the Model Code lists a number of "special responsibilities" that go with being a prosecutor. These ethical duties include:

■ Not prosecuting charges that are unsupported by probable cause;
■ Making reasonable efforts to ensure that defendants have been advised of their constitutional rights;
■ Making timely disclosures to the defense of information known to the prosecutor that tends to "negate the guilt of the accused or mitigates the offense";
■ Not making extrajudicial comments that are prejudicial to the defendant unless they serve a "legitimate law enforcement purpose."

Section (g), which applies in situations where a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, and section (h), which applies when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, will be discussed in Chapter 14, which covers the subject of appeals.
The ABA Model Rules of Professional Conduct can be found on the ABA website at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_profesional_conduct/model_rules_of_professional_conduct_table_of_contents/.

C. THE ROLE OF PROSECUTING ATTORNEYS IN INVESTIGATIONS

1. GENERAL INVESTIGATIVE RESPONSIBILITIES

Prosecutors are responsible for the overall coordination of criminal investigations. They must establish good working relationships with local police agencies and give them legal advice as to how they should go about gathering and preserving evidence. When they discover holes or weak points in their cases, prosecutors need to give directions to police or in-house investigators as to the types of additional evidence they need to gather. When physical evidence is sent to crime labs, the prosecutor's office is responsible for making sure that the right tests are performed and determining what the results really mean.

2. APPLICATIONS FOR SEARCH WARRANTS

In Chapter 4, we discussed the function of search warrants and how they were prepared. Although there is wide variation as to the roles played by police, prosecutors, and paralegals in drafting some of these documents, the prosecuting attorney is ultimately responsible for presenting them to the court.

3. COORDINATION OF GRAND JURY ACTIVITIES

Grand juries are part of our common law tradition. The Fifth Amendment to the U.S. Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Unlike most other sections of the Bill of Rights, the grand jury provision of the Fifth Amendment does not apply to the states.¹⁵ However, a substantial minority of states require a grand jury indictment to pursue serious criminal charges.¹⁶ However, in a majority of states, indictment by a grand jury is optional; and two states use grand juries only to conduct investigations into criminal activity, but not to indict.¹⁷

Like citizens serving on trial juries (also known as "petit juries"), grand jurors are made up of local residents who are randomly selected from voter registration rolls or driver's license registration records. Unlike service on a trial jury, which takes place on consecutive business days, people serving on a grand jury typically meet one day a week over a period of several months.

Grand juries usually consist of between 16 and 23 persons who review the prosecutor's recommendations regarding whether specific individuals should be forced to stand trial for alleged criminal offenses and who initiate independent investigations of criminal activities.¹⁸...