Grand jury

In the federal system of the United States, and in about half of the state systems, charges are brought not by the public prosecutor but by the grand jury, a group of 12 to 23 citizens selected by lot. The grand jury also has investigative authority, and it is to serve as a protective shield against unwarranted prosecution. In practice, however, grand juries are usually dominated by the public prosecutors, who are responsible for presenting the evidence to them.

Prosecutorial discretion

In all legal systems the prosecutor should bring an accusation only if he thinks that the available evidence, discounted by probable defense evidence, is so strong that the defendant is likely to be convicted after trial. In some countries, such as Italy, the prosecutor is required by law to bring charges whenever there is sufficient evidence for conviction. In other jurisdictions — for example, in the United States, France, and Japan — the public prosecutor has discretion whether or not to file a formal accusation; in effect, this means that he can informally grant clemency to an offender who would certainly be convicted in court. In still other countries, such as Germany, prosecutorial discretion applies only to minor offenses, whereas prosecution of serious crimes is mandatory. To the extent the prosecutor has discretion, he can make the decision not to prosecute dependent upon certain conditions — e.g., that the offender pay restitution to the victim.

Questions and tasks to Part 2

1. What does the law of criminal procedure regulate?

2. What is the aim of the investigatory phase?

3. Who takes part in the investigation?