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Prosecutors

Among the world's criminal procedure systems, the main legal actors are judges (professional and lay), who adjudicate legal disputes; jurors (lay persons), who render a verdict and find facts; defense attorneys (professional and lay) who defend the accused, and prosecutors, who participate in bringing the state's case against the accused.

Prosecutorial Roles and Legal Traditions

Either public or private prosecutors conduct criminal prosecutions, with public salaried government employees the most common. Public prosecutors enter state employment either as civil service or direct appointees or through popular election. They typically are responsible for initiating prosecution against the accused. In private prosecution systems, the victim or victim's relatives often initiate prosecution. This process may run parallel to the public prosecution system, as in Austria, Germany, Sweden, and Finland.

The role of the prosecutor varies according to a system's legal tradition, which involves a distinct set of beliefs, attitudes, and practices about the nature of law, the role of law in society, and the organization of law and legal processes. The principal legal traditions are the civil law, common law, socialist law, religious law, and customary law. Legal systems within each tradition have many similarities, though significant differences also exist between nations.

Civil Law

Under the civil law tradition, the adjudicatory process is typically inquisitorial. Presumably, truth emerges through continuing investigation. Here the judge acts as a finder of fact, supervising the collection of evidence, questioning witnesses and the defendant, and adjudicating the case. The prosecutor screens cases and decides whether to charge the accused. If the case reaches trial, the prosecutor and defense have a more inactive role than in the adversarial system. They suggest the direction of inquiry for the judge and may ask questions once the judge has finished her inquiry. The civil law tradition and its variations are dominant in the world today, existing in continental Europe, Latin America, and parts of Africa, Asia, and the Middle East. It is also the system used in the International Criminal Court.

France offers an example of the civil law tradition. In France, the procurator acts on behalf of society, not the state. Her primary duty is to ensure that justice is done and that society's interests are served. The three key actors in the French criminal justice system are (1) the judicial police, (2) the procurator, and (3) the examining magistrate. The police investigate cases and, depending on their status, may detain suspects for investigation. The procurator decides whether to charge the suspect or dismiss the case. They prosecute less serious felonies and most misdemeanors and direct the work of the judicial police. Depending on the charge, either an investigation by a magistrate is required (serious felonies) or the procurator can request it. In principle, all cases go to trial. The presiding judge conducts the trial. He questions the accused and calls witnesses. The prosecutor and defense may question witnesses directly and the accused indirectly through the judge.

Common Law

In the common law tradition, the adjudicatory process is typically adversarial. Presumably, truth emerges through an adversarial process—that is, during trial. The prosecutor plays a much more active role than in the inquisitorial system. She is responsible for bringing the state's case against the accused. The prosecutor evaluates cases for prosecution and decides whether to charge the accused. If the court charges the accused with a crime, the prosecutor and defense gather the evidence and present it to a judge (and in some cases a jury) who decides the defendant's future. During a trial, the prosecutor is responsible for establishing a defendant's guilt. The judge, as the neutral third party, acts as a referee during trial and may decide the outcome of the case if no jury is present. Common law systems exist in the United Kingdom and most English speaking countries.

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