Criminal Justice: The system of prosecution


Many of us, when we watch court room proceedings, either in fiction or in real life, seemed to be baffled by the many idiosyncracies that goes with the resolution of the cases being tried. The places and stations of the various participants and what parameters do each of the actors in the proceedings have and must observe in the conduct of the trial. The paper will try to analyze one of the actors in the proceedings, the prosecutorial side of the proceedings and what does the role of the prosecutor have in the conduction of the trial.

The Prosecutor: Finding for justice for the victim

            Most of us are aware that the commission of a crime bears with it the possibility of that person or entity being punished with the possibility of incarceration. In the definition of a crime, it can adduced that a crime is an action, whether by omission or commission, of an act by which an attendant term of punishment is given (George Cole, Christopher Smith, 1998). The term and the finding of an individual for the guilt or innocence of that crime is to be carried within the confines of the criminal justice system (Cole & Smith, 1998). Under the Due Process model of Criminal Justice, it is inherent to consider that the innocence of the person being accused is paramount, and the guilt or innocence of that person should only be found in the ambit of the law and in the conduct of legally recognized proceedings (Cole & Smith, 1998).

Prosecutorial systems in the United States

            There is a variety of justice systems currently in practice in the world today (Abraham Goldstein, 2008). The distinguishing characteristic is the extent by the latitude that a prosecutor has the determining factor if a defendant can be charged in court (Goldstein, 2008). Unlike its European counterparts, the American system can be considered as a crossed model (Goldstein, 2008). But it should be noted that it cannot be stated that there is one single unitary system of prosecution in the United States (Goldstein, 2008). At present, there exist different prosecutorial systems in the United States, with the added Federal system of prosecution (Goldstein, 2008).

            The process by which the system of criminal justice is administered is built up according to the steps that criminal justice officials follow in the deduction of the guilt or innocence of the individual being accused (Donald Dripps, 2008). In the conduct of the proceedings, two distinct figures will stand out in the dispensation of justice (South Carolina Victims Network). In the conduct of criminal cases, the solicitor, the prosecutorial arm of the State, will try the case for the State, while the defense attorney will be representing the defendant (South Carolina). The prosecutors are tasked by both State and local officials to try cases in representation of the respective localities against defendants in criminal cases (West’s Encyclopedia of American Law, 2nd edition, 2008).

             Before the filing of the case against the defendant, some localities task the prosecutor to submit to the court the statement of charges by which the defendant is charged with, called an information sheet (West, 2008). Some states will require the prosecutor to convene a grand jury before the courts can consider charging the defendant with a grievous offense (West, 2008). In the criminal justice system of the United States, it is said that the prosecutor is the single most integral component and influential decision maker (Thomas Wiegend, 2008). In the ordinary course of a criminal investigation, the law enforcement authorities begin the process with the investigation with the filing of a complaint against the defendant. But as to the degree of the punishment and sanctions that will be imposed on the party, the infraction that the defendant will have to challenge or even if the defendant will be charged at all lies within the ambit of the prosecutor (Wiegend, 2008).

            It therefore can be said that prosecutors are afforded wide latitude when the decision is made with regards whether to proceed with a criminal case against the defendant in open court (West, 2008). In essence, the prosecution does not have to believe in the guilt or innocence of the defendant. Simply put, the prosecutor must be able to muster enough pieces of evidence that will prove the defendant did in fact commit the offense (West, 2008).  This characteristic of the law enforcement agency of the government is inclusive of the decisions of the judges, police and officers of the court on whether a case will be tried or dropped from the roster of active cases (Cole & Smith, 1998).

Discretion of the Prosecutor: Prone to Abuse?

             The issue of the powers of discretion afforded to prosecutors in the United States has been one of substantial discussion (Yue Ma, 2002). As earlier stated, the prosecutors, as the focal point of the American justice system, carry an enormous responsibility in making decisions in the regular dispensation of justice in the country (Ma, 2002). First, the prosecutor is tasked with the choice of case to file against the defendant from the overwhelming mass of laws in the criminal and law books (Ma, 2002). In this aspect, from the presentation of the facts as given by the police and the information given against the client, it must be given to the prosecutors that a certain amount of leeway is afforded them in the decision whether to proceed with the case or not (Ma, 2002).

            Also, it was earlier noted that the prosecution of the defendant does not lie in the belief of the prosecution that the defendant committed the crime (West, 2008). It is based on the notion that the State has met with the minimum requirements in the satisfaction of the threshold for probable cause (Kenneth Melilli, 1992). So in this premise, how is the innocence of the accused, if the prosecution decides not to bring up the case for trial? Is the trial itself the only avenue to adduce the innocence of the accused (Melilli, 1992)? The prosecutor could be responsible for the non-prosecution of a defendant or prosecution of a wrongfully accused person (Melilli, 1992).

            This can occur if the person is just charged solely on the testimony of the police officer, or on the report that the police file based on the complaint of another individual (Melilli, 1992). But even those who argue against the American justice system agree that the proper exercise of the discretionary privilege of prosecutors abets rather than obstructs the dispensation of justice (Ma, 2002). The discussion about reining in the power of the prosecutors gained momentum when the initiative for removing this privilege from the ambit of judges shifting them instead to the hands of the prosecutors (Wiegend, 2008). But there are limits  that the powers of the prosecution to take the case to court can be controlled (West, 2008).

            First, the prosecutor cannot lay a foundation in the prosecution of a defendant if such basis is founded on the defendant’s race or religious beliefs, or arbitrary motivations (West, 2008). Arbitrary can be defined in this sense iin that the prosecution of the individual is not bound by reason or judgement but on personal bias and discretion without consideration for the rules and systems (West, 2008). The prosecution also cannot add more infractions to the case being tried if the person is inclined to utilize a right that is enshrined in the fundamental law of the land (West, 2008).


Cole, G..F., Smith, C.E. (1998). The American Criminal Justice System. Eighth Edition

            Minnesota: West Publishing Company


Dripps, D. (2008). Criminal justice process. Retrieved October 28, 2008, from


Goldstein, A.H. (2008). Prosecution: history of the public prosecutor. Retrieved October 28,      2008, from           Prosecutor.html

Livingston, D. (2008). Prosecution: United States attorney. Retrieved October 28, 2008, from


Ma, Y. (2002). Prosecutorial discretion and plea bargaining in the United States, France,            Germany and Italy: a comparative perspective. International Criminal Justice Review     Volume 12


Melilli, K.J. (1992). Prosecutorial discretion in an adversary system. Brigham Young Law           Review


South Carolina Victims Assistance Network. (n.d.). The criminal court process. Retrieved          October 28, 2008, from

Wiegend, T. (2008). Prosecution: comparative aspects-who prosecutes? Retreived October         28, 2008, from  Aspects.html

West’s Encyclopedia of American Law. (2008). Legal definition of prosecutor. Retrieved           October 28, 2008, from