Chapter 6
Prosecutors
LEARNING OBJECTIVES
1. Discuss the two major characteristics of prosecutors in the United States.
2. Describe the three most important entities in federal prosecution.
4. Explain the major factors affecting the work life of assistant district attorneys.
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
justice (Bessler, 1994).
B. From Private to Public Prosecutions
i. Deriving from private prosecution in Great Britain, private prosecution
the United States remained the norm until the late 1800s. Some states still
permit private criminal prosecutions today.
C. Quasi-Public Prosecutions
i. Due to small size or budgetary restrictions, some jurisdictions adopt
quasi-public prosecution models. These two models are the prosecution
II. Role of the Prosecutor
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.
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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
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
D. Decentralization
i. A second characteristic of the prosecutor is decentralization. There are
more than 8,000 federal, state, county, municipal, and township
prosecution agencies, and, just as in the dual court system, there are
separate prosecutors in federal and state courts.
Class Discussion/Activity 1
Discuss how broad discretion and decentralization impact the role of the
prosecutor. Should discretion be reduced? How? Should the office be more
centralized? What issues might be a consequence of efforts to centralize
prosecutors’ offices?
Media Tool
Read the following article on the National Immigration Law Center
website related to prosecutorial discretion and immigration:
What If Scenario
What if you were the chair of your state judicial reform commission, which
was charged with the task of reforming the role and power of prosecutors
in your state; what would be some of your recommendations, and why?
What If Scenario
You are a prosecutor who is charged with reducing crimes such as
prostitution, public intoxication, drug use, and other similar crimes in your
jurisdiction. What would your approach be? Be sure to support your
answer.
See Assignment 1
III. Prosecution in Federal Courts
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
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.
E. Criminal Division of the Justice Department
i. The criminal division formulates criminal law enforcement policies over
all federal criminal cases, except those specifically assigned to other
F. U.S. Attorneys
i. The U.S. attorneys serve as the nation’s principal litigators under the
direction of the attorney general. U.S. attorneys are appointed by, and
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serve at the discretion of, the President of the United States, with the
advice and consent of the Senate.
ii. U.S. attorneys represent the federal government in court in many matters.
iii. They have three statutory responsibilities: prosecution of criminal cases
brought by the federal government; initiation and defense of civil cases in
iv. Although the criminal division of the U.S. Department of Justice
supervises all federal prosecutions, in practice U.S. attorneys enjoy
considerable autonomy.
See Assignments 2 and 3
IV. Prosecution in State Courts
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
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.
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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
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
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
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
autonomy; each individual assistant DA is granted a great deal of
freedom to make his or her own decisions.
ii. Concerned that autonomy allows too much unchecked discretion,
iii. However, attempts by supervisors to control the work of the assistants
tend to erode the morale of the office.
See Assignment 4
VI. Prosecutorial Ethics
Learning Objective 5: Analyze the principal factors affecting prosecutorial
ethics.
A. The Duke University lacrosse team rape case has become the contemporary
poster child for prosecutorial misconduct. This was a truly exceptional case
and needs to be analyzed within an array of legal issues that limit
prosecutorial power.
B. Ethical issues facing prosecutors are very different from those confronting
defense attorneys because prosecutors do not represent individual clients.
Rather, the client of the prosecutor is the government, and for this reason
prosecutors are given special responsibilities.
C. Prosecutorial Immunity
i. Prosecutors enjoy absolute immunity—complete freedom from civil
liability—for everything they do with regard to the core prosecutorial
D. Ethical Duties of Prosecutors
i. Prosecutors have a number of specific ethical obligations in addition to
the overarching prosecutorial duty to seek justice. These include things
such as disclosing exculpatory evidence, avoiding conflicts of interest,
and refraining from any behavior which would interfere with fair
administration of justice.
ii. As explained earlier, prosecutors exercise a tremendous amount of
discretion in the charging decision, and there are ethical standards which
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relate to how this discretion should be used. Prosecutors are not supposed
to institute any criminal charges that are not supported by probable cause.
iii. There are ethical issues surrounding prosecutors’ discretion to seek the
death penalty, which are often debated.
iv. How much information to release to the public presents another ethical
issue for prosecutors (Pollock, 2019).
Class Discussion/Activity 2
Should prosecutors be subject to civil liability when they engage in misconduct?
Media Tool
Watch PBS video titled Prosecutorial Misconduct:
Media Tool
Read PBS FRONTLINE video titled The O.J. Verdict – Interview William
Hodgman:
See Assignment 5
VII. Prosecutors and Courtroom Work Groups
A. The prosecutor is the most important member of the work group.
B. Prosecutors set the agenda for judges and defense attorneys by exercising
discretion over the types of cases filed, the nature of acceptable plea
agreements, and the sentences to be handed out.
C. Prosecutors also control the flow of information about cases by providing
access to police arrest reports, laboratory tests, and defendants’ criminal
D. As the dominant force in the courtroom work group, prosecutors clearly set
the tone for plea bargaining.
E. Prosecutors’ actions, in turn, are influenced by other members of the
courtroom work group. Operating within the constraints of the courtroom
work group, effective assistant DAs are those who make tactical decisions
that maximize their objectives.
F. Conflicting Goals and Contrasting Work Groups
i. Prosecutors define their main job in different ways.
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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
the styles. Have students explain why they prefer one style over another. This
discussion could take place in small groups and then continue as a whole class.
Class Discussion/Activity 3
Have students identify the two different political styles of the prosecutor
available to those who are dissatisfied with the office and determine which one
they would be most likely to assume. Discuss the benefits and costs of each of
What If Scenario
Imagine you are a prosecutor and have been invited to give a speech to a class of
law students about your role as the chief law enforcement officer of your county.
Would you say that your role was to put as many criminals in jail or prison as
possible or to uphold justice even if you had to let a guilty crime suspect go free
because of police misconduct? Why?
VIII. The Expanding Domain of the Prosecutor
Learning Objective 6: Outline two major examples of the expanding domain of
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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
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
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).
Class Discussion/Activity 4
Discuss the differences and possible tension points between prosecutors and
police and possible solutions for improving police–prosecutor relationships.
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.
officer of the court: Lawyers are officers of the court and, as such, must obey court
rules, be truthful in court, and generally serve the needs of justice.
state attorney general: The chief legal officer of a state, representing that state in civil
and, under certain circumstances, criminal cases.
U.S. attorney general: Head of the Department of Justice; nominated by the president
and confirmed by the Senate.
U.S. attorneys: Officials responsible for the prosecution of crimes that violate the laws
of the United States; appointed by the president and assigned to a U.S. district court.
LECTURE NOTES
The job of a prosecutor can come in the form of a federal or state level position. The
positions do differ, but the goals are the same. The prosecutor is the key to making the
courtroom work group operate and he/she has the ability to have great influence on a case
through the use of discretion. Discuss the amount of discretion a prosecutor possesses and
involve students by asking them what factors a prosecutor might consider to influence
After discussing the federal court system and its operations, move on to discuss the
operations in a state prosecutor’s courtroom. The state, chief, and local prosecutors all
have different functions, however, in some cases they will have similar cases/job
functions. Discuss these and have students conduct research on those currently in these
positions. Focus on discussing the job functions of each and compare these functions to
the federal systems. Have the students discuss the similarities and differences between
the two.
Discuss how a prosecutor’s office works and the elements of what is involved in this type
of office. It’s important for students to understand who the assistant district attorney is.
Discuss political styles. Allow students to engage in conversation about the three styles
and the problems prosecutors may encounter under each style. Expand on courthouse
politics and cover the fact that during election times, many people have the propensity to
change their styles in an effort to win the votes of citizens.
Discuss the topic of the prosecutor’s domain and how it is expanding through programs
like community prosecution and improving police–prosecutor relationships. Ask students
whether they believe programs like this will work. What do they see as obstacles to their
success? What do they believe is necessary for these types of programs to succeed?
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. Broad discretion is important because it provides independence from the judiciary.
Discretion is necessary but more oversight might be helpful to reducing misuse of
2. Students’ opinions will vary, but they should reference the “Case Close–Up”
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–
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
ASSIGNMENTS
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
characteristics? What are the negative aspects? Write a one-page summary on these
2. Create a presentation on the three most important entities in federal prosecution. Be
3. “United States Attorney’s Office”
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
why?
5. “Prosecutors Working for Free”
6. Research the last prosecutorial election. Was there any conflict? How might you
determine what political style the current prosecutor has adopted? Identify the
7. Investigate the concept of community prosecution in your area. Does such a program
exist? Find the geographical closest community prosecution program. Identify the
goals of the program. How does the program seek to accomplish these goals?
8. “Community Prosecution”