Powers of the Prosecutor in Criminal Investigation

A Comparative Perspective

Karolina Kremens

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000291087
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This comparative analysis examines the scope of prosecutorial powers at different phases of criminal investigation in four countries: the United States, Italy, Poland, and Germany. Since in all four the number of criminal cases decided without trial is constantly increasing, criminal investigation has become central in the criminal process. The work asks: who should be in charge of this stage of the process? Prosecutors have gained tremendous powers to influence the outcome of the criminal cases, including powers once reserved for judges. In a system in which the role of the trial is diminishing and the significance of criminal investigation is growing, this book questions whether the prosecutor's powers at the early stage of the process should be enhanced.

Using a problem-oriented approach, the book provides a parallel analysis of each country along five possible spheres of prosecutorial engagement: commencing criminal investigation; conducting criminal investigation, undertaking initial charging decisions; imposing coercive measures; and discontinuing criminal investigation. Using the competing adversarial–inquisitorial models as a framework, the focus is on the prosecutor as a crucial figure in the criminal process and investigation.

The insights of this book will be of interest and relevance to students and academics in criminal justice, criminology, law, and public policy, as well as policymakers, government officials, and others interested in legal reform.

Chapter 1

Introduction

1.1 Vanishing Trials

The most popular image of criminal proceedings captured in the public imagination refers to the courtroom, where the guilt of the defendant is decided, in the presence of the curious, and even eager for revenge, audience gathered in that hall, with the meaningful participation of the prosecutor and defense counsels. Depending on the system of law where one was born and raised, this image may be complemented by a jury burdened with the obligation of deciding on the guilt of the accused, or a mixed tribunal in which jurors adjudicate together with a professional judge, while in other cases the judge sits alone. The location of actors of this peculiar theatre may move along the courtroom. The parties may sit at right angles to the bench or facing the judge. The testifying witness may be standing in the middle of the room in front of the judge or sitting next to her facing the interrogator and the public. Sometimes even the costumes—the gowns, the wigs, become an important part of the play and in other environments just nice suits and ordinary clothes are enough. In any case, however, the courtroom, an impartial decision maker, witness testimonies, presentation of evidence, as well as prosecution and defense arguments remain in the collective imagination as an image of the criminal process.

It also seems that in minds of those who write and teach about the law this picture remains equally valid. All academics begin their tale of the criminal justice system by explaining the importance of the trial, as it is the leading feature of the criminal process. Of course, at some point they will also pay attention to violations of individual rights during the process, methods of collecting evidence during investigation, or the available remedies and manners in which the judgment can be appealed. But eventually, the central point of any criminal procedure academic course will be the structure of the trial, the procedural roles played by its actors, admissibility of evidence, and issues related to the presence of the accused in the courtroom. It will be presented as having the most significant impact on the criminal justice system as a whole. Frequently, among the compulsory courses to be tackled by young adepts of law are moot courts and mock trials, where they may practice their oratory skills, as well as the ability to question witnesses or submit motions. Such activities are looked forward to and are strongly desired by young lawyers wishing to enter the real world of legal practice. This happens regardless of the latitude in which their school of law is situated and system of criminal process in which young lawyers take their education.

Apparently, only practitioners who have spent enough time outside the courtroom are under no illusions. They very clearly perceive the changes that have taken place in criminal justice systems in which the importance of the trial as a venue where the fate of the defendant is decided has vanished. One might smile when Daniel Kaffee played by Tom Cruise enters the courtroom as a young but already experienced JAG lawyer in one of the scenes of the iconic movie A Few Good Men and says with unfailing delight mixed with fear “So this is what a courtroom looks like!” This indicates that he had never been in a courtroom before, since his reputation as a successful and tenacious lawyer had been built on the exploitation of plea-bargaining mechanism and not his litigation skills that would require courtroom experience. This scene was filmed more than 30 years ago and even though it refers to the military proceedings there is no doubt that it is a good example of what became an everyday reality not only in the US courthouse, but it is increasingly becoming the unfortunate truth for all criminal justice systems.

The comparative law literature has noted and broadly described the phenomenon of criminal cases decided out of trial through the negotiations leading to conviction and all other distinct forms of avoiding this form of adjudication.¹ The trend originated in the USA and has spread to the other common-law countries.² The statistics are merciless. A study from 2008 shows that in the USA almost 90 percent of all criminal cases are resolved in plea bargaining.³ Some older works report that only about 3 percent of cases in that country are dealt with by the way of trial and that judges are conducting only about two trials each month on average.⁴ And even more striking are data for the federal courts system providing that 97.3 percent convictions are a result of guilty pleas.⁵ This is a result of many years of trying to overcome an overload of criminal cases entering the court system.

1Langer (2004); Turner (2009); Thaman (2010); Hodgson (2015).2Turner (2012); Vogel (2019).3Gramckow (2008), p. 390.4See the studies from 1983 and 2003 cited by Jacoby and Ratledge (2016), p. 88.5Brown (2019), p. 544.

On the other hand, in Continental European countries, these mechanisms are perceived as relatively new. In 2010 when Wade presented the results of a collective comparative study on the issue, the so-called negotiated case-settlement procedures were treated as a “new trend.”⁶ At that point she was not even able to gather statistical data from all researched countries. But even then, it was clear that this was the direction in which the criminal process had been moving for some time. The current data gathered among the European countries prove that the “new trend” became solid and develops further.⁷ Currently, the majority of criminal cases are resolved without trial. In 2009 in Germany only 10 percent of cases in which the police referred an identified suspect to the prosecutor went to trial.⁸ In 2012, 77 percent of cases involving known suspects were dismissed for lack of sufficient evidence or for policy reasons and 52 percent of the remaining cases were disposed of by penal order.⁹ In Poland more than 54 percent of cases filed yearly with the court are resolved without a trial, as a result of plea-bargained agreements and other forms of trial-waiver procedures.¹⁰ In Italy the popularity of the Italian version of plea-bargaining called pattegiamento is distinctively lower, yet other forms of adjudicating out of trial or in a shortened form of proceedings appear to make up for it.¹¹

6Wade (2010), p. 83.7Cf. Fair Trials (2017).8Weigend (2012), p. 384.9Weigend and Turner (2014), p. 84 note 14.10See the most recent data from 2019 regarding Poland in Sprawozdanie z działalności powszechnych jednostek organizacyjnych prokuratury za rok 2019, https://pk.gov.pl/wp-content/uploads/2020/03/PK-P1K.pdf (accessed 12.05.2020), p. 6. Note that in 2019, while 302,668 cases were filed with court, at the same time as many as 406,770 were dismissed by the prosecutor (Cf. Jasiński and Kremens (2019), p. 42).11Panzavolta (2004), p. 621; Gialuz (2017), p. 46–51.

It should not go unnoticed that the disappearance of the trial is not only the result of negotiated agreements concluded by the court’s decision to convict and sentence the defendant without a trial. The legal inventions are much broader. As has been presented in various studies, the variety of options in that regard encompasses e.g. conditional disposals, penal orders, and discontinuation of proceedings based on public interest grounds.¹² These decisions to some extent are made by an impartial adjudicator with the prosecutor’s consent but in case of discontinuations based on public interest usually they remain purely within the scope of prosecutorial powers. One can therefore notice a common ground for these decisions. First of all, they all add to the replacement of the trial with some other form of adjudication. This results in a major reinforcement of the significance of the criminal investigation as the only phase of criminal process where the defendant is faced with the criminal justice system machinery and where evidence is gathered and to some extent tested. As a consequence the defendant is exposed for the sake of those actors that dominate the criminal investigation i.e. police and prosecutor.

12See in comparative perspective especially Luna and Wade (2010); Jehle and Wade (2010). Cf. very recent work by Langer (2020).

The concept that the criminal investigation has gained tremendous importance at the expense of the trial is not a novel observation. Caianiello noted in 2016 that

in the past two decades the trial phase has lost its relevance and that the crucial decisions for the outcome of criminal proceedings are made more and more frequently during the investigation and pretrial phase, where the prosecutor can operate with greater discretion.¹³

13Caianiello (2016), p. 3.

This has been concluded based on the Italian system but should be considered as equally valid for other countries. It has also been observed by Huber that trials should be considered as diminishing in their importance not only due to the constantly growing number of decisions regarding the criminal liability of defendant taken out of trial; it is so also because “the outcome of the criminal process today is in fact determined to a large extent during the pre-trial phase.”¹⁴ Even if the process is ultimately taken to the courtroom and decided in an adversarial atmosphere by the trier of fact, the final decision that is to be made has already been largely predetermined by what has happened during criminal investigation. This is in part because the complexity of many investigative measures has reache...