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Prosecutors

Chapter Six

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Prosecutor

• Most powerful official in the criminal courts.

• Has broad discretion• Part of the executive branch of

government.• Independence from the judiciary. • Considered an Officer of the Court

– Has a duty to see justice done.

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The Role of the Prosecutor

• Has the power to charge or not to charge a person with a crime.

• Can make bail recommendations. • Represents the state in the prosecution of

criminal cases. • Acts as legal advisor to the grand jury.• Has discretion in plea bargaining.• Makes sentencing recommendations.

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Berger v. U.S.

• “He may prosecute with 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.”

• The prosecutor’s primary interest is in doing justice, not simply winning cases.

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Federal Prosecutions

• Prosecutions in Federal Courts are conducted by the U.S. Department of Justice.

• Headed by the U.S. Attorney General.

• The Solicitor General represents the executive branch before the Supreme Court.

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Overview of Prosecutors in the Dual Court System

Insert Exhibit 6-2, page 130 here.

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U.S. Attorneys

• Serve as the nation’s principal litigators under the direction of the attorney general.

• Part of the U.S. Department Of Justice.• 93 U.S. Attorneys.• Appointed by, and serve at the discretion

of, the president, with the advice and consent of the senate.

• 47,000 Assistant U.S. Attorneys.

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U.S. Attorney’s Responsibilities

1. Prosecution of criminal cases brought by the federal government.

2. Initiation and defense of civil cases in which the United States is a party.

3. Collection of certain debts owed to the federal government.

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State Attorney Generals

• Considered the State’s Chief Law Enforcement Officer.

• Provide legal advice to other state agencies and represent the state in court when state actions are challenged.

• Authority over local prosecutors is limited.

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Chief Prosecutors

• Chief law enforcement official in the community.

• District Attorneys, County Attorney, State’s Attorney, Prosecuting Attorney, etc.

• Elected officials (95% of the time). • Deputy or Assistant District Attorneys try

cases.

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Local Prosecutors

• City Attorneys, solicitors.• Approx. 5,700 nationally.• Represent the locality.• Responsible for preliminary stages of

felony cases as they are processed in the lower courts.

• Try misdemeanors, infractions, minor civil cases.

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The Profile of a Typical Assistant District Attorney

• Hired immediately after graduation from law school or after a short time in private practice.

• Usually attended local law schools.• Hired on the basis of party affiliation and

the recommendations of elected officials. • Most serve an average of 2 to 4 years

before entering private practice.

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Office Structure

• Vertical Prosecution: one prosecutor is assigned responsibility for a case from intake to appeal.

• Horizontal Prosecution: prosecutors are assigned to specific functions, such as initial appearance, charging, preliminary hearing, grand jury, trial, or appeal.

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Prosecutor’s Civil Liability

• Imbler v. Pachtman: Prosecutors have absolute immunity from civil damages for their role as a courtroom advocate

• Burns v. Reed: Prosecutors only have a Qualified Immunity from lawsuits concerning advice given to the police (and for actions during criminal investigations and statements made during news conferences - Buckley v. Fitzsimmons).

• Kalina v. Fletcher: A prosecutor may be sued for making false statements of fact in an affidavit in support of an arrest warrant.