Author name : Dinu Nicolae-Alin

Department : Law School

University : Romanian-American University
Coordinating teacher : Gyongyver Maduta
Adress : Bulevardul Expoziției 1B, București 012101
Country : Romania
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 A prosecutor is a legal representative of the prosecution in countries with either
the common law adversarial system, or the civil law inquisitorial system. The
prosecution is the legal party responsible for presenting the case in
a criminal trial against an individual accused of breaking the law. Typically, the
prosecutor represents 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 recognized as
legal professionals by the court in which they intend to represent society (that is, they
have been admitted to the bar).
They usually only become involved in a criminal case once a suspect has been
identified and charges need to be filed. They are typically employed by an office of the
government, with safeguards in place to ensure such an office can successfully pursue
the prosecution of government officials. Often, 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 prosecutors are backed by the power of the state, they are usually 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).

United States

In the United States, the director of a prosecution office may be known by any of
several names depending on the jurisdiction, most commonly District Attorney. In
Commonwealth states, like Virginia, they are known as Commonwealth's Attorney.
The prosecution is the legal party responsible for presenting the case against an
individual or a corporation suspected of breaking the law, initiating and directing
further criminal investigations, guiding and recommending the sentencing of offenders,
and are the only attorneys allowed to participate in grand jury proceedings.[3]

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 The titles of prosecutors in state courts vary from state to state and level of
government (i.e. city, county, and state) and include the terms District Attorney in New
York, California, Texas, Pennsylvania, Delaware, Massachusetts, North
Carolina, Georgia, Nevada, Wisconsin, Oregon, and Oklahoma[4]; City
Attorney in California cities (typically prosecute only minor and misdemeanor
offenses) Commonwealth's Attorney in Kentucky and Virginia; County
Attorney in Nebraska[5], Minnesota, and Arizona[6]; County Prosecutor in New
Jersey,[7] Ohio, and Indiana[8]; District Attorney General in Tennessee; Prosecuting
Attorney in Arkansas,[9] Hawaii, Idaho, Michigan, Washington, and West Virginia (as
well as in Missouri where cities additionally use "City Attorneys" to prosecute on their
behalf); State's Attorney in Connecticut, Florida, Illinois, Maryland, North Dakota, and
Vermont; State Prosecutor; Attorney General in Delaware and Rhode Island;
and Solicitor in South Carolina.[10] Prosecutors are most often chosen through local
elections, and typically hire other attorneys as deputies or assistants to conduct most of
the actual work of the office. United States Attorneys are appointed by the President and
confirmed by the Senate. They represent the federal government in federal court in both
civil and criminal cases. Private attorneys general can bring criminal cases on behalf of
private parties in some states.

Prosecutors are required by state and federal laws to follow certain rules. For
example, the government must disclose exculpatory evidence to the defense;[11] must
disclose matters affecting the credibility of prosecution witnesses, such as an agreement
to dismiss the witness's own charges in exchange for her testimony;[12] must not destroy
potentially useful evidence in bad faith;[13] and must not use false testimony to secure a
conviction.[14] Failure to follow these rules may result in a finding of prosecutorial
misconduct, although a 2013 investigation found that actual discipline for prosecutorial
misconduct was lacking.[15]
Prosecutors are also tasked with seeking justice in their prosecutions. "The
States Attorney," explained the U.S. Supreme Court, is the representative not of
an ordinary party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all, and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very definite sense the servant of the law, the
two-fold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.[16]
Prosecutors in some jurisdictions have the discretion to not pursue criminal
charges, even when there is probable cause, if they determine that there is no reasonable
likelihood of conviction.[17] Prosecutors may dismiss charges in this situation by seeking
a voluntary dismissal or nolle prosequi.
In Kentucky, Massachusetts, Pennsylvania, and Virginia, criminal prosecutions
are brought in the name of the Commonwealth.

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In California, Colorado, Illinois, Michigan, and New York, criminal prosecutions are
brought in the name of the People. In the remaining states, criminal prosecutions are
brought in the name of the State.

What Does a Prosecutor Do?

When a person has been arrested for a crime, the District Attorney’s Office
immediately gets notification and all documentation that is available for the case. Since
the arrest typically happens before all of the evidence is collected at the crime scene by
the police, this can be a very brief report. Once all evidence is collected, the District
Attorney’s Office then determines if there is enough evidence to charge the accused with
a crime. They also determine what the crime actually is and they set a bail amount for
the person who was arrested.

This process can take up to twenty four hours but must be done in forty eight
hours in most states. No state can imprison a person without charging them within a
specified amount of time that has been set in law by each individual state.

Once the DA has formerly charged a person with a crime, a prosecutor for the
city, county or state is then given the case to prepare it for all the steps of the trial
process. Depending on the type of the crime, there may be a lead prosecutor as well as a
deputy prosecutor who work it. Together they go through all the evidence in the case, set
up meetings with witnesses to interview them and gather facts about what happened.
They work to build up a sound case against the defendant that will hold up in a court of
law.

There are many stages to a criminal case and typically the first hearing is a bond
hearing where the judge determines how much bail should be set for the defendant. The
next step is a bit more complicated and requires more work for the prosecutor. This is
the preliminary hearing where the prosecutor shows their case to the judge to determine
whether or not there is enough evidence to go to trial for the crime. This requires
witnesses to be called in to give testimony which is also refuted by the defense team in
the form of cross examination. Once this process has gone through, the judge will rule
on the case and set a date for the next step of the trial process.

The next step is the formal charging of a defendant and where they are allowed to
plea guilty or not guilty. There is not much that the prosecutors do except to give the
charges to the judge who then asks the defendant what they plea. If the defense team is
willing, the next step is pretrial negotiations and this is where many cases get resolved
before they even go to trial. If the prosecutors are confident that they can get a judge or
jury to side with them, they may refuse any plea offers. A plea typically means the

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defendant pleads guilty to a lesser charge which means less jail time in most cases. If a
plea deal cannot be arranged then the prosecutors’ real work begins and they begin
preparing for a full trial.

A full trial is just like the ones you see on television but they are typically not as
dramatic although in some very high profile cases they can be. The prosecution is the
first to make their case because they have the job of proving the defendant committed
the crime. The defense is simply there to cast a shadow of doubt that would lead to their
client’s innocence. It can become a game of cat and mouse but it is very interesting and
hard work for the prosecutor. The final outcome is never known until the verdict is read
and still the work may not be over if there is an appeal that is made by the defendant at a
later date.

How the Prosecutor Decides Which Cases to Charge

Arrest and prosecution functions are separated primarily to protect citizens

against the arbitrary exercise of police power. Police officers usually make arrests based
only on whether they have good reason (probable cause) to believe a crime has been
committed. By contrast, prosecutors can file formal charges only if they believe that they
can prove a suspect guilty beyond a reasonable doubt.

Prosecutors can also take a broader perspective. They have what is called
“prosecutorial discretion.” Prosecutors can look at all the circumstances of a case,
including the suspect’s past criminal record, in deciding whether and what to charge.
Prosecutors can file charges on all crimes for which the police arrested a suspect, can file
charges that are more or less severe than the charges leveled by the police, or can decide
not to file any charges at all. (U.S. v. Batchelder, U.S. Sup. Ct. 1979.)

The Prosecutor's Decision: Using the Police Report

Typically, prosecutors base their initial charging decisions on the documents sent
to them by the arresting police officers (usually called police or arrest reports). The
police complete an arrest report soon after they make an arrest and then quickly
forward the report to a prosecutor assigned to do case intake. Arrest reports summarize
the events leading up to arrests and provide numerous other details, such as dates, time,
location, weather conditions, and witnesses’ names and addresses.
Arrest reports are almost always one-sided. They recite only what the police claim
took place and may include only witness statements that support the police theory.
While they are generally not admissible as evidence in a trial, arrest reports can have a
major impact in criminal cases.

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 Not only do arrest reports often determine what charges prosecutors file, but they
also may play a key role in how much bail is required, the outcome of preliminary
hearings (where hearsay evidence is often admissible), the willingness of the prosecutor
to plea bargain, and trial tactics (for instance, the police report can be used to discredit
testimony of the police officer who prepared the report).

The Prosecutor's Decision: Political Pressure

Most head prosecutors are elected officials. Many of them view their position as a
stepping-stone to higher office. Their charging decisions are often, therefore, affected by
public opinion or important support groups. For example, a prosecutor may file charges
on every shoplifting case, no matter how weak, to curry favor with local store owners
who want to get the word out that shoplifters will be prosecuted. For similar reasons, a
prosecutor may pursue otherwise weak prostitution charges to avoid alienating powerful
civic groups. Deputy or assistant prosecutors may feel that appearing tough will help
their careers, either within the prosecutor’s office or later if they want to become judges.
Experienced defense attorneys understand that prosecutors must sometimes be
seen as taking a strong stand publicly, even though they may be willing to respond to
weaknesses in individual cases at a later stage of the process. This is one of the reasons
why practically every criminal defendant will benefit from the help of an experienced,
local criminal defense attorney: Only those professionals know where the pressure
points are and how to work around them (or with them).

To become a prosecutor, you obviously need to earn a Bachelor in Law, followed

by a Master in Legal Practice. However, that’s not all. As with virtually any other public
position, once you have done that, you need to pass a tough competitive exam.
Becoming a prosecutor is no mean feat; you need to be serious, dedicated, and willing to
give it your all. In a certain sense, prosecutors are the visible face of justice in action.

People who decide to become prosecutors do so out of conviction, because they

are truly convinced that they will be able to handle any kind of case and ensure that
justice is served at all times. Once candidates have passed the competitive exam, which
is the same one you need to sit to become a judge, they need to complete a one-year
course in which they specialise in a certain field and take their first steps.
We’re sick of seeing how films and TV shows depict prosecutors as cold and calculating,
willing to go to any length to crush the accused. That’s not how things work in real life.

Prosecutors are not always the accusers; in fact, prosecutors do not accuse at all,
they simply ensure that the legal process is fulfilled. They initiate proceedings and make
sure that all the evidence and witnesses are included in the summary presented to the
judge. Don’t be fooled: prosecutors don’t spend their time unmasking the bad guys and
heroically grandstanding in the courtroom. They are an actor in the process, responsible
for ensuring that it is reliable and effective; you might say they are a kind of project

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manager. If the project turns out well, the law can be considered to have been followed
down to the last letter.
As I said, being a prosecutor takes time and dedication and, therefore,
commitment. But what doesn’t require commitment these days? If one thing is clear, it’s
that no one ever got anywhere without at least a little effort. If you really want to be a
prosecutor, then I have only one thing to say: study at ESADE and you will be able to do
it.

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 BIBLIOGRAPHY

 Gad Barzilai. The Attorney General and the State Prosecutor: Is Institutional Separation
Warranted? (Jerusalem: The Israel Democracy Institute, 2010).

 Hugo Nigro Mazzilli. Regime Juridico do Ministério Público, 5ª edição, São Paulo: Saraiva, 2001.

 Raoul Muhm, Gian Carlo Caselli (Hrsg.), Die Rolle des Staatsanwaltes Erfahrungen in Europa–Il
ruolo del Pubblico Ministero Esperienze in Europa–Le role du Magistrat du Parquet Expériences
en Europe–The role of the Public Prosecutor Experiences in Europe, Vecchiarelli Editore
Manziana (Roma) 2005 ISBN 88-8247-156-X

 Raoul Muhm, "The role of the Public Prosecutor in Germany" in The Irish Jurist, Volume
XXXVIII, New Series 2003, The Law Faculty, University College, Dublin

 Erick Maurel, Paroles de procureur (Paris: Gallimard, 2008)