Prosecutorial Power in the Age of Criminal Justice Reform.

• Author: Ring, William P.

Marvel's superhero movies thrive upon the idea that, to right the wrongs in society, justice must be served by superheroes that wield more power than traditional law enforcement is able to muster. And no villain is ever charged with a crime for all the mayhem.

In real life, however, law enforcement and prosecutors face criminal events every day with the tools provided to them through laws and processes at the federal, state and local levels. These tools are limited by the Constitution, state statutes, the Rules of Evidence and the Rules of Criminal Procedure. Together, the authority and the tools exist so the prosecutor can advance justice and the common good for the communities they serve. Prosecutors then use discretion to moderate and regulate a public sense of justice. This all occurs inside a justice system that assigns the prosecutor the burdens of both proof and persuasion.

So, what is a prosecutor? A prosecutor is a person trained in the law and procedure that carries out his or her duties on behalf of the State. State law and rules define the qualifications of the prosecutor, the methods of prosecution, and how the position is carried out. It is the law that defines where the prosecutor's assignments begin and end.

Some critics claim that the modern prosecutor has enormous power. In fact too much power. Of course, when the focus is upon power the tendency is to see it expanding. Critics too easily malign prosecutors without considering how this balance of power is carefully put together, which is worth examining.

First, criminal laws exist to ensure public safety. The administration of a justice system promotes both truth and accountability. The end goal is to ascertain the truth and secure a just determination in every case. One consequence is to impose just punishment upon those whose conduct threatens the public peace.

Few citizens realize that the prosecutor is the only person in the criminal justice system who is responsible for presenting the truth. Meanwhile, the rules and methods protect the fundamental rights and the presumed innocence of the accused. A prosecutor can only seek a charge when there is sufficient, admissible evidence for the prosecutor to reasonably believe a jury will convict the accused with proof beyond a reasonable doubt.

In real life, evidence is often inadmissible. Witnesses are frequently unavailable.There can be some admissible evidence, but it may not be a sufficient amount. The prosecutor has the...