Criminal Law

Keeping Law and Order: The Prosecutor

When a person commits a crime, someone's responsible for making sure that he's "prosecuted," or punished for breaking the law. That someone goes by many different names. In the state court systems, you may hear names like prosecutor, county attorney, prosecuting attorney, state's attorney and assistant district attorney. When it comes to federal crimes, you'll hear the names US attorney or assistant US attorney. Regardless of the name, however, he's the one who prosecutes criminal defendants, and much more.

Prosecutor's Main Job

A prosecutor's main job is to protect the rights and safety of the public at large; to keep your community safe. In performing that job, it's necessary for prosecutors to figure out when a person whose been accused of a crime should be taken to trial, that is, prosecuted. The process for making that decision is different not only between the federal government and states, but it also differs from state to state.

Federal Prosecutors

Persons accused of committing a federal crime are prosecuted by federal prosecutors, specifically US attorneys and their staff attorneys, called assistant US attorneys, who all work for the US Department of Justice (DOJ). When it comes to deciding if a person will be prosecuted for committing a federal crime, a federal prosecutor usually has to get a grand jury indictment. This is when a group of 23 citizens are sworn in by court and they listen to and look at the evidence against the person accused of a crime. It's their job to determine whether the federal government's evidence establishes probable cause to believe that the person being accused actually committed the crime. Probable cause means that the evidence is strong enough to convince a reasonable person that the accused is probably guilty of the crime.

If 12 or more members of the grand jury find that the evidence is sufficient, it will indict the accused and he'll be charged formally with a crime. If not, the accused, generally, will be released.

State Prosecutors

In most states, grand juries aren't used, although a few states use them. Most states use complaints to charge someone with committing a crime (although some states use both grand jury indictments and complaints). In most states, the process works like this:

  • The police investigate a crime, and, if in the course of that investigation they find a suspect and evidence tending to show that he committed the crime, they present that evidence to the prosecutor
  • The prosecutor looks at the evidence to see if there's enough evidence to justify bringing the suspect to trial
  • If there's enough evidence, the prosecutor will prepare a complaint, which formally accuses the accused of committing a specific crime
  • If there's not enough evidence, the prosecutor will either make sure the accused is released, or may ask the police to gather more evidence

Another way a state prosecutor may decide to file formal charges is when a citizen (called a "complaining witness" or "complainant") reports a crime directly to the prosecutor. Here, the prosecutor will look at the witness's statement and any other evidence of the crime, and perhaps ask the police to investigate the crime. If he thinks a crime has been committed, the prosecutor may file a formal complaint against the suspect.

Discretion

At both the federal and state levels, the prosecutor has the discretion to decide if a person will stand trial. At the federal level, if the prosecutor doesn't think there's enough evidence against someone or that he probably won't be convicted, he doesn't have to let a grand jury look at the case. Likewise, a state prosecutor doesn't have to file a complaint when there's not enough evidence.

Similarly, it's the prosecutor who decides which crime or crimes the accused will be charged with. For example, a suspect in an armed bank robbery could possibly be charged with the robbery as well as another crime, like kidnapping (if hostages were taken) or attempted murder (if shots were fired). The prosecutor has the option of charging the accused with armed robbery only.

What Else Do They Do?

Another big job for prosecutors is to protect the rights of victims of crimes. This is done in large part by Crime Victims Compensation programs. Each state has such a program, and it's funded in part by grants from the federal Crime Victims Fund, which is run by the DOJ's Office for Victims of Crime. Generally, these programs pay money to the victims of federal and state crimes to help pay for things like:

  • Medical costs
  • Funeral and burial costs
  • Lost wages

In addition, the program makes other types of assistance available to crime victims, such as:

  • Emergency shelter
  • Emergency transportation
  • Psychological counseling

Questions for Your Attorney

  • Someone filed a criminal complaint against me, and I want to talk to the prosecutor about it because I think it's baseless. The prosecutor won't even take my phone calls, though. Why won't the prosecutor talk to me? Will she talk to you about it if I hire you to defend me, or do I have to wait and see if formal charges are filed against me?
  • I and another person were arrested for robbery. I was charged with the crime but the prosecutor let the other person go free. Can he do that? Why would he?
  • I'm from Ohio but I was the victim of a crime in Kentucky. Can I get assistance from both states' Victims of Crimes funds? How do I ask for benefits?
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