Many people have an opinion of prosecutors based solely on what they see on TV and in films about the criminal justice system. It is natural to think their sole job is to argue a case before a judge and jury – and oppose everything a criminal defense lawyer tries to do. While the prosecutor as advocate is one of a prosecutor’s job tasks, it is not the only one.
At the federal level, prosecutors (also known as US attorneys) are chosen by the US President to run a regional office. Often, the Senators who represent the state where the regional office is located have some input into the selection of the US attorney. Once a lead prosecutor is appointed, that prosecutor normally selects his/her own team of assistant US attorneys.
At the state level, prosecutors usually run for office – though some may be appointed by a Governor. Once a lead prosecutor (often called a district attorney) is elected, that prosecutor chooses a staff of assistant prosecutors.
The role of the prosecutor
The prosecutor is supposed to be the people’s lawyer. A prosecutor is supposed to fight for the safety of the people in the community he/she represents. While prosecutors work with many law enforcement officials, with the victims, and with witnesses, the prosecutor does not represent any of those people. The prosecutor represents the community as a whole – not anyone on an individual basis. In this respect, prosecutors have a different role than a criminal defense lawyer. The prosecutor’s primary duty is to the community. The defense lawyer’s primary duty is to his client.
If a prosecutor has evidence that a defendant is innocent, the prosecutor must disclose that evidence to the defense lawyer and to the judge. A defense lawyer generally has no duty to disclose whether his client is guilty to the prosecutor or judge (though he or she cannot encourage the client to lie, as that could lead to a perjury charge).
Prosecutors must comply with the US Constitution and the Constitution of Maryland, the applicable federal and/or state laws, the rules of ethics that apply to them, and, ultimately, to the will of the people.
Selection of cases and presentation of charges
US attorneys and district attorneys generally have full discretion to decide whether a person should be charged with a crime, and what criminal charges should be filed against that person. In deciding which cases and what charges to bring, prosecutors review:
- The criminal statutes that apply. The prosecutor needs to determine if the statute was violated. Often, prosecutors decide which statutes they consider the most serious Prosecutors do not always bring charges for violations of every statute, because each charge means using court time, the possibility of incarceration when there are limited prison facilities, and many other practical considerations.
- The likelihood of success if charges are brought. Before deciding to file charges, the prosecutor will review what witnesses are able to testify, whether the elements of the statute can be proven, what defense arguments may be asserted, whether the police respected the defendant’s Constitutional rights, and other factors.
- What alternatives may apply. Some wrongs may be best addressed outside of a criminal court.
The concerns of the victim and the safety or risks to the victim are also considered.
The investigation of the criminal offense
Prosecutors are often engaged in the investigation of a crime – especially complex crimes such as embezzlement or financial crimes. Some of the investigative tasks prosecutors review include determining:
- Whether to ask for a search warrant
- When and how to question suspects and witnesses
- Whether to request that bail be set for a defendant and how much bail
- Which witnesses are credible
- Whether to begin a sting operation
The lead US attorney and district attorney then:
- Decide which assistants will represent the government at the defendant’s preliminary hearing.
- Present indictments through the grand jury process.
- Contest (or agree) to motions to suppress evidence because the evidence was illegally obtained or for other reasons.
- Represent the federal or state government at the trial of the defendant. This includes deciding which witnesses will testify. Prosecutors make opening and closing statements. They introduce witnesses and evidence. Prosecutors determine when facts can be stipulated to with defense counsel. Prosecutors may object to questions and evidence that your criminal defense lawyer seeks to present to the court.
- Decide whether to retry a case if there was a mistrial.
- Proceed with grand jury hearings
- Appear before appellate courts.
There are times when the prosecutor may initiate a plea bargain. For example, if the prosecutor thinks a defendant’s testimony or cooperation can help lead to the arrest of someone who organized the criminal activity or directed the criminal activity, the prosecutor may agree to reduce the criminal charges (or agree to recommend a lesser sentence) if the defendant provides testimony or cooperates.
When a criminal defense lawyer thinks a prosecutor’s case is weak for any reason, the defense lawyer may initiate the plea bargain negotiations. Here, the defense will argue that the defendant may agree to plead to a less serious offense (or a lesser sentence) if the prosecutor agrees. The advantage for the prosecutor is that he/she obtains a conviction on behalf of the state in a case where the defendant has a reasonable chance of success. The advantage for the defendant is that he/she pleas to a lesser offense or to a lesser sentence in a case where he/she could be found guilty and receive a lengthy jail sentence.
It is not unheard of for a prosecutor to file charges he/she knows cannot be proven in order to get a defendant to plead to a lesser charge.
Alternatives and sentencing recommendations
A prosecutor generally has the discretion to authorize any alternatives to sentencing, such as participation in a drug court program or an agreement to a program where the charges will be dismissed if the defendant completes the terms of the agreement.
A prosecutor also makes sentencing recommendations based on the applicable federal and state guidelines. The prosecutor can recommend probation in lieu of a prison sentence. The prosecutor will recommend a specific sentence (or range) depending on the facts of the case and the defendant’s prior criminal record.
At Carey Law Office, we have worked with – and against – numerous federal and state prosecutors. We understand when prosecutors are willing to listen and when the only response is to challenge their positions before the judge. We understand when prosecutors have a strong case and when they do not. Our premier Bowie and Crofton defense lawyer has the experience and resources to fight the prosecution. To discuss any criminal case, call us at 301-464-2500 or use our contact form to make an appointment.
My name is Joe Carey, and I am the founder and principal attorney of the Carey Law Office. I have lived in Maryland my entire life. I grew up in a small town in Prince George’s County and, with the help of my partner in life, Nancy, I raised my family here: three exceptional children (a son and two daughters), and two goofy, spoiled black Labrador Retrievers. Learn More