of 13
Chapter 6
Prosecutors
6. Outline two major examples of the expanding domain of the prosecutor.
LESSON PLAN
Correlated to PowerPoints
I. Origin of the Public Prosecutor
A. Today's modern prosecutor is typically a government employee in civil
service. The public prosecutor evolved from private prosecutions at English
common law where a victim or their relatives or friends brought a criminal to
Learning Objective 1: Discuss the two major characteristics of prosecutors in the
United States.
A. The prosecutor is of critical importance in the criminal justice system.
B. Broad Discretion
i. A key characteristic of the American prosecutor is broad discretion. The
office of prosecutor is part of the executive branch of government, and
this independence from the judiciary is vital for the proper functioning of
the adversary system.
4
5-9
ii. In the context of the adversary system, the prosecutor is expected to
advocate the guilt of the defendant vigorously. But the prosecutor is also
a lawyer and is therefore an officer of the court (i.e., has a duty to see that
justice is done). Violations of the law must be prosecuted, but in a way
that guarantees that the defendant’s rights are respected and protected.
iii. In recent years, the Supreme Court has expressed repeated concern about
prosecutorial misconduct. Convictions have been reversed because
prosecutors were too zealous in their advocacy.
C. Charging Decisions
i. Of all the discretionary decisions prosecutors routinely make, perhaps
none is more important than the decision to file charges. The decision to
file will transform a suspect into a criminal defendant.
ii. There are few, if any, legislative or judicial guidelines to guide
prosecutors in the exercise of their discretion in this domain.
iii. Focal concerns theory maintains that sentencing decisions are shaped by
three primary focal concerns: blameworthiness, protection of the
community, and the practical constraints and consequences of the
sentencing decision. Focal concerns may be legal or extralegal in natures.
iv. The legal factors prosecutors routinely consider in charging decisions
include: the seriousness of the offense; the strength of the evidence; the
What If Scenario
Learning Objective 2: Describe the three most important entities in federal
prosecution.
A. Prosecutions in federal courts are conducted by the U.S. Department of
Justice, which is headed by the U.S. attorney general, who is a member of
the president’s cabinet.
B. The Department of Justice is a sprawling series of bureaucracies, which
include investigatory and law enforcement offices such as the Federal Bureau
of Investigation, the Drug Enforcement Administration, the U.S. Marshals
Service, and the Federal Bureau of Prisons. Also in the Department of Justice
is the Office of Justice Programs, which oversees the Bureau of Justice
Assistance.
C. In terms of prosecution, three entities—solicitor general, criminal division,
and U.S. attorneys—are particularly important.
D. Solicitor General
i. The U.S. solicitor general is the third-ranking official in the Justice
Department. The solicitor general’s principal task is to represent the
executive branch before the Supreme Court.
ii. The office of the solicitor general is basically an influential law firm
whose client is the U.S. government.
10-12
serve at the discretion of, the President of the United States, with the
Learning Objective 3: Identify the three somewhat overlapping agencies
involved in prosecution in state courts.
A. Decentralization and local autonomy characterize prosecution in state courts.
The result is divided responsibility, with state prosecutorial authority
typically found in three separate offices: state, county (or district), and local.
B. State Attorneys General
i. The position of state attorney general, the state’s chief legal officer, is
typically spelled out in the state’s constitution.
ii. Among the state attorney general’s duties are providing legal advice to
other state agencies and representing the state in court when state actions
are challenged.
iii. State attorneys general emphasize their civil responsibilities, because they
typically have limited authority over criminal matters.
C. Chief Prosecutor
i. The American prosecutor has few direct parallels elsewhere in the world
(Flemming, 1990; Jehle & Wade, 2006; Sklansky, 2016).
ii. Because of elections, the work of the American prosecutor is set within
the larger political process. The tremendous power of the prosecutor
means that political parties are very interested in controlling the office.
iii. The chief prosecutor has numerous opportunities for patronage.
D. Local Prosecutor
i. Little is known about the activities of local prosecutors. In some
jurisdictions, local prosecutors are responsible for the preliminary stages
of felony cases as they are processed in the lower courts.
ii. Local prosecutors are primarily responsible for processing the large
volume of minor criminal offenses disposed of in the lower courts.
V. The Prosecutor’s Office at Work
Learning Objective 4: Explain the major factors affecting the work life of
assistant district attorneys.
13-14
15
A. Assistant District Attorneys
i. Most assistant district attorneys are hired immediately after graduation
from law school or after a short time in private practice.
ii. In the past, many prosecutors hired assistants on the basis of party
affiliation and the recommendations of elected officials. Increasingly,
however, greater stress is being placed on merit selection.
iii. The turnover rate among assistant district attorneys is high due to issues
such as low pay, growing tired of the job, and the view by many of the
assistants that the job is a step toward a more lucrative private practice.
B. Learning the Job
i. Law schools provide an overview of law on the books such as criminal
law, criminal procedure, evidence, and constitutional law, but most law
schools give their students very little exposure to law in action. For
decades, training in prosecutors’ offices was almost exclusively on the
job.
ii. Law schools have been under increasing pressure to teach their students
more about the actual practice of law. Many have responded by adding
more skills-oriented classes to their curricula, problem-based learning
within classes, and a host of community engaged learning activities (such
as legal practice clinics and internship placement programs) that are
aimed at helping students become more prepared to enter the legal
workforce (Bard, 2011).
C. Promotions and Office Structure
i. Promotions are related to office structure (Flemming, Nardulli, &
Eisenstein, 1992).
ii. Small prosecutors’ offices usually use vertical prosecution, in which
one prosecutor is assigned responsibility for a case from intake to
appeal (Nugent & McEwen, 1988). In these offices, assistants are
promoted by being assigned more serious cases.
iii. Most prosecutors’ offices in big cities use horizontal prosecution, in
which prosecutors are assigned to specific functions, such as initial
appearance, charging, preliminary hearing, grand jury, trial, or appeal.
Under horizontal prosecution, assistants spend a year or more handling
misdemeanor offenses before they are promoted to felony trials.
iv. Over the past decades, specialization has become increasingly
common in chief prosecutors’ offices, particularly in densely
populated jurisdictions.
D. Supervision
i. Assistant district attorneys are supervised by a section head, who is
supposed to ensure that they follow policies of the office.
ii. However, assistant DAs enjoy fairly broad freedom, office policies are
general and somewhat vague, and official and unofficial policies are
simply part of what the assistant learns informally.
iii. In large offices, decentralized work assignments mean that supervisors
can exert only limited control over specific cases or individual
assistants. Each assistant has dozens of cases that require individual
decisions on the basis of specific facts, unique witness problems, and
so on. A supervisor has no way to monitor such situations except on
the basis of what the assistant orally reports or writes in the file.
E. Attempts at Greater Supervision
i. The traditional form of prosecutorial management is centered on
relate to how this discretion should be used. Prosecutors are not supposed
ii. Some stress working closely with law enforcement agencies. These
1965).
iv. The uncertainties about which goals should come first have historically
produced marked diversity among prosecutors, with some prosecutors’
offices focusing on the administration of justice, and others focusing on
an adversarial model (McDonald, 1979; Utz, 1979).
G. Political Styles and Contrasting Work Groups
i. The prosecutor’s role within the courtroom work group also needs to be
understood within the broader political context in which the office
functions.
ii. Prosecutors satisfied with the status of the office adopt an “office
conservator” style.
iii. Prosecutors who are less content with the status of their offices face a
more complicated set of choices. They must decide whether conflict is an
effective tool for them to use.
iv. “Courthouse insurgents” are very dissatisfied with the status quo and are
prepared to use conflict to change it.
v. “Policy reformers” are also dissatisfied with the status quo, but are
cautious, often conciliatory, in their approach. Upon taking office, they
gradually move to tighten their offices’ guilty-plea policies, encourage
more assertive attitudes among their assistants, and try to develop
innovative approaches to prosecutorial work.
vi. Differences in political styles cross party lines; these are not Republican
or Democratic styles and are not necessarily constant through time.
VIII. The Expanding Domain of the Prosecutor
Learning Objective 6: Outline two major examples of the expanding domain of
22-23
the prosecutor.
A. The domain of the prosecutor has been expanding throughout the past
century, and pressures to place greater authority in the hands of the
prosecutor are likely to continue (Davis, 2009; Worrall & Borakove, 2008).
B. Improving Police–Prosecutor Relationships
i. Police and prosecutors have differing perspectives on the law. Police
focus on arrest where prosecutors are concerned with conviction. The
higher burden of proof means that, in some cases, police reports and
evidence are not enough to charge a case.
ii. Police and prosecutors in several jurisdictions have adopted strategies to
improve coordination and communication (Buchanan, 1989).
iii. A few agencies have gone further, institutionalizing teamwork and
making communication between investigators and prosecutors a top
priority. Programs like these indicate that, despite a long history of
difficulties, some agencies apparently are bridging the gap.
iv. No research to date has systematically evaluated these programs to
indicate their overall effectiveness.
C. Community Prosecution
i. The historic image of the district attorney stresses case processing: The
DA files charges and doggedly pursues a conviction. But this traditional
image is becoming blurred as locally elected prosecutors respond to a
wide variety of social problems.
ii. In responding to these types of social problems, prosecutors today are
more likely to stress problem-oriented approaches. At times, the specifics
are hard to pin down, but these new approaches have three elements in
common (Center for Court Innovation, 2012b; Jacoby, 1995): prosecutors
have the responsibility not only to prosecute cases but also reduce crime;
the most effective results are obtained within small, manageable
geographic areas, which often means working out of neighborhood
offices; and change is more likely to occur through cooperative efforts or
partnerships, rather than prosecutorial dictates.
iii. Overall, community prosecution stresses a proactive approach: Rather
than reacting to crime through prosecution, these programs stress crime
prevention (Coles & Kelling, 1999; Miles, 2013).
See Assignments 6, 7, and 8
KEY TERMS
absolute immunity: Complete freedom from civil liability.
focal concerns theory: Sentencing decision are shaped by three primary focal concerns:
blameworthiness, protection of the community, and the practical constraints and
consequences of the sentencing decision.
local prosecutor: General term for lawyers who represent local governments (cities and
counties, for example) in the lower courts; often called city attorneys or solicitors.
1. Broad discretion is important because it provides independence from the judiciary.
3. Prosecutors who are less satisfied with their offices may choose to be a “courthouse
insurgent” or a “policy reformer.” The courthouse insurgent is much more conflict-
oriented than the policy reformer. The courthouse insurgent will implement the
turnover. The policy reformer will take longer to implement change. The policy
4. Police are interested only in arrests, for which the burden of proof is much lower
than for evidence in a court trial. Prosecutors are interested in the sufficiency of the
1. What are the two main characteristics of the prosecutor’s office? How might these
two characteristics work together? What are the positive aspects of these two
3. “United States Attorney’s Office”
http://www.justice.gov/usao/
• United States Attorney’s Office Website.
• Assignment: Have students find the mission and function statement on the
United States Attorney’s Office (USAO) website. Describe the mission and
function of the USAO. What details are provided that could not be included in
4. Write a three-page paper defining, comparing, and contrasting the three political
styles of prosecutors. Which style do you believe would be the most effective and
5. “Prosecutors Working for Free”
http://abovethelaw.com/2011/05/would-you-work-as-a-federal-prosecutor-for-free/
• Above the Law Website
LO5
6. Research the last prosecutorial election. Was there any conflict? How might you
7. Investigate the concept of community prosecution in your area. Does such a program
exist? Find the geographical closest community prosecution program. Identify the
8. “Community Prosecution”
http://www.courtinnovation.org/topic/community-prosecution
• Center for Court Innovation Website
• Assignment: Have students read an article on the website and summarize the