1. The prosecutor: The Primary representative of the State (people)
1. Selection: Generally, elected. U.S. Attorney’s are appointed
2. Qualifications: Law Degree and licensed attorney.
3. Role in the Criminal Justice System: The chief legal representative of the state during the accusatory and trial stages of a case. Has immense power because of prosecutorial discretion, as this allows the prosecutor to decide which cases are tried, and which cases are not tried; who is to be charged and the type of charged to be filed; and, once a charge is made, in effect, determining the penalty through plea bargaining. Duties include:
1. Direct Investigation(s)
2. Make initial determination as to sufficiency of evidence to support a charge and, who shall be charged;
3. Decide type/number of charges to be brought;
4. Presentment of evidence to a grand jury
5. Represent state at all court proceedings including a/the trial; during penalty phase (if accused is convicted); and during appeal if one is taken.
4. Duty to defendant created by Brady v. Maryland (1963): Prosecutor is required to disclose to the defense exculpatory evidence that directly relates to claims of either guilt or innocence. U.S. v Bagley (1985) goes further and requires the disclosure of any evidence the defense requests.
5. Removal from Office: loss of election: abuse of discretion. No unlimited immunity can be held responsible for mistakes in judgments, especially where it can be shown that the person in question should have known better. Prosecutors once held unlimited immunity when exercising their official duties, but a recent case seems to have eroded this status:

                    a. BURNS v. REED (1991) Held- absolutely immune from liability for damages… for participating in a probable cause hearing, but not for giving legal advice to the police. Subject with multiple personalities. On advice of prosecutor confession given under Hypnosis. Conviction Overturned. Subject alleged prosecutor should have known such testimony inadmissible.

1. Abuse of Discretion: may make prosecutor answerable to state supreme court or attorney generals office level or result in criminal trial.

1. Professional Responsibility: held to the standards of legal profession, as articulated in the American Bar Association Code of Professional Responsibility and standard for criminal Justice.

1. THE PROSECUTOR’S DISCRETION

1. Deciding not to Charge

1. The first formal duty of the prosecutor involves determining whether a defendant should be charged.
2. The decision not to charge is based on the prosecutor’s traditional power of nolle prosequi, or the discretion not to charge a suspect even though there is sufficient evidence that the suspect has committed the crime.
3. What reasons would a prosecutor have for choosing not to prosecute a case. (pg 234-35)
1. Applying the Probable Cause Standard (see, figure 9.2, pg 236)
1. For the Police, "probable Cause" is essentially "backward looking"
2. For the prosecutor, "Probable Cause" is "forward looking"- to the trail, at which the higher evidence of proof " beyond a reasonable doubt" is necessary for conviction. Also, the prosecutor has tactical considerations such as:

        i.    The credibility of witnesses
        ii.    Likelihood of successful motions to exclude evidence
        iii.    Likelihood of a successful defense (Defendant’s Attorney)
        iv.    The likely effect on the jury of the reputation of the suspect or the victim and/or the Defense Attorney
        v.    Anything else that might go wrong

2. Determining the Initial Charge (pg 236)
1. Joinder
2. Severance
3. Bringing Formal Charges (pg 236)
1. Grand Jury Functions

i.    To screen cases brought by the prosecutor
ii.    To conduct independent investigations of possible criminal conduct in the community even when no defendant is brought to the Grand Jury by the prosecutor – may result in a presentment ( charging document like an indictment)
2. Grand Jury Indictment Process
3. The preliminary Hearing / Information Process (pg 238-239 and table 9.1 pg 238)
4. Hearsay- Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he/she has heard others say. It is testimony, in court, of a statement made out of court; the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for it’s value upon the credibility of the out of court asserter.

 

2. THE PROSECUTOR’S WORLD
1. Two Views of the Role of the Prosecutor (pg 241)
1. The Chief Law Enforcement Officer
2.  A Champion for Individual Rights
    
3. PLEA BARGAINING
1. Definition and Introduction
1. Basically, a negotiated agreement defendant, prosecutor, and the court as to what an appropriate plea and associated sentence should be in a given case.
2. Elements:
1. Out- of- court
2. usually involves defendant. Defense counsel, and prosecutor
3. requires judicial consent to validate conviction
4. requires the defendant to make a statement as to his / her guilt in open court as well as the agreement to the terms of bargain.
5. Plea can be withdrawn with consent of court.
2. Leniency for Pleading Guilty (pg 242-43)
3. The Purpose of Plea Bargaining (pg 243)
4. Advantage of Plea Bargaining for the:
1. State (pg 243-44)
2. Prosecutors (pg 244-45)
3. Judge (pg 245)
4. Police and Correctional Agencies (pg 245-46)
5. Victims (pg 246)
6. For the Defendant and Defense Attorney (246-247)
5. Issues
1. Is justice achieved through Plea bargaining (pg 247-48)
2. Who is in charge of Plea Bargaining? (pg 248-249)
3. Must Promises be Kept? (pg 249-250)
4. Does everyone have an equal Opportunity to Bargain? (Pg 250)
5. Does Bargaining convict the innocent? (250-251)
6. Does Bargaining nullify Police efforts and ignore the victim? (pg 215)
7. Does it circumvent Constitutional Protections? (pg 251)
8. Does Bargaining lower respect for justice? (pg 251-252)
9. Does Bargaining conceal the whole truth? (pg 252)