Prosecutorial errors, misconduct that get people in jail

Criminal prosecution is conducted by prosecutors. A prosecutor is a public officer, usually a lawyer or police officer, who institutes and conducts criminal proceedings against accused persons in a criminal court.

The prosecutor represents the Republic and presents a case against the accused in a criminal trial. In Ghana, the Attorney General is the chief prosecutor constitutionally mandated to conduct criminal prosecutions for and on behalf of the Republic. Lawyers who work in the office of the Attorney General are called State Attorneys.

Some designated officers in the Ghana Police Service, Ghana Revenue Authority, Environmental Protection Agency, etc also exercise prosecutorial powers. The purpose of this article is to examine the proper functions of a prosecutor as well as identify some prosecutorial errors or misconduct that often get innocent people in jail.

What is the interest of the Republic in a criminal prosecution?

The interest of the Republic in criminal matters is limited to ensuring that justice prevails. It is not in the interest of the public that some of its members get punished for no wrong done. Prosecutors should bear in mind that criminal prosecution is not warfare.

Criminal proceedings involve a judicial inquiry into an allegation that the accused has committed a criminal offense. The prosecutor’s role in the process is to assist the court to do justice in the case. The interest of the prosecutor is not to get a conviction at all costs.

Prosecutorial discretion

The Attorney-General exercises a wide range of discretion in relation to criminal prosecution. In our system of criminal justice, prosecutorial discretion exists throughout the entire process; from the investigation stage through to the conclusion of the trial.

The decision to prosecute or not to prosecute is a matter that is solely within the discretion of the Attorney General. The decision to initiate or continue criminal proceedings lies at the core of prosecutorial discretion.

The Attorney General and his officers exercise a wide range of discretion in deciding whether or not to initiate a criminal action, withdraw a charge, enter nolle prosequi, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

Prosecutorial discretion is not subject to judicial control. However, the court may control the exercise of prosecutorial discretion to prevent abuse of the court’s process.

What are the proper functions of a prosecutor?

First, the primary duty of the prosecutor is to initiate criminal proceedings against accused persons in a criminal court. The prosecutor prepares a charge sheet containing the offenses alleged to have been committed by the accused person and presents it to the court.

Second, the prosecutor should present only cases that have a legal basis. A prosecutor should refrain from presenting frivolous cases in court. Before presenting a case, the prosecutor should that there is enough evidence to support the charge. The prosecutor should invoke the criminal process only when he believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.

Third, as a minister of justice, it is the duty of the prosecutor to ensure that justice is served. It is not the duty of the prosecutor to ensure that he wins his case at all costs. The duty of the prosecutor is to seek justice, not merely to obtain a conviction. The Attorney-General is an advocate for the Republic whose chief purpose in a criminal trial is not to achieve victory but to establish justice.

Fourth, it is the duty of the prosecutor to ensure that the accused receives a fair trial. In the conduct of a trial, the prosecuting attorney as well as the court has the duty to see that the accused has a fair trial.

Fifth, the prosecutor must use fair means in prosecuting his case. No doubt, the State has a strong interest in prosecuting crime, but the State’s duty is to pursue justice, not to obtain convictions, and the prosecutor has a duty to act as a minister of justice to conduct prosecutions by fair means.

Sixth, the prosecutor must present all the facts of the case to the court, whether the facts favor the accused or that of the Republic. Fundamental justice requires that the prosecutor or counsel for the Republic must frankly allude to facts or laws favorable to the cause of the accused. The prosecutor has the duty to disclose facts favorable to the case of the accused.

Seventh, the prosecutor must refrain from any conduct that is likely to inflame the passion or prejudice of the trier of fact against the accused.

Eighth, it is the duty of the prosecutor to bring before the Court all material witnesses whose testimony may be needed to decide the case one way or the other. It is improper for the prosecutor to call only witnesses whose testimony favor the case of the prosecution.

Ninth, the prosecutor has the duty to observe, uphold and protect the integrity of the judicial process. He must not do anything to frustrate and embarrass the judicial process.

What is prosecutorial misconduct?

Prosecutorial misconduct embraces all acts or omissions by the prosecutor that deviate from the proper functions of a minister of justice. Any conduct that threatens the accused person’s right to a fair trial may be classified as prosecutorial misconduct.

It may be a deliberate or mistaken act or omission intended to overreach the accused person. Simply put, prosecutorial misconduct encompasses any action or inaction of the prosecutor that is not acceptable in a just and fair trial.

What are some of the prosecutorial errors or misconducts that often get people wrongly convicted and punished?

Police brutalities: Police brutalities are commonplace in Ghana. Some criminal suspects are often brutalized and mishandled by police officers upon arrest or while in lawful detention. It is common to see complainants paying money to police officers to teach people ‘lesson’. Having received the money, the police would beat or mishandle the suspects to satisfy their paymasters. This is simply unprofessional and unlawful.

Extortion of confession statements from the accused: It is common for some police officers to extort confession statements from accused persons through the use of improper force, inducement, and undue influence. A criminal suspect may be compelled to confess to a crime when he is beaten or tortured for a long time or when he is threatened with detention, etc.

Writing incriminating statements for suspects: Some investigators write incriminating facts and explain them differently to suspects, knowing that after the suspects have signed those statements they cannot deny the contents later in court. This is a fertile source of wrongful convictions in Ghana.

And this is one of the ills independent witnesses are supposed to check. The advice is that if you can read and write in the English language, you may decide you write your own statement. This is permissible.

Advising suspects against engaging the services of a lawyer: Some police officers or prosecutors advise criminal suspects not to engage the services of lawyers on the ground that the case is ‘too small or that the sentence may be merely a fine or that it is simply needless to engage a lawyer.

Before the suspect realizes the need to engage a lawyer, he would have been convicted and imprisoned. An accused person has a constitutional right to a lawyer of his choice. Do not ever take such pieces of advice from a prosecutor.

Embellishment of the complainant’s case: In presenting cases to the court, some prosecutors sometimes embellish the complainant’s case in order to attract judicial sympathy for the complainant. Prosecutors often wrongly assume that complainants are their clients and that they must do everything possible to help their case.

In drafting the facts, of the case, it is common to find prosecutors making wild allegations just to make their case look more serious than it actually is. The danger is that these ‘decorated facts’ play on the minds of the trial judges. It takes cross-examination to expose some of these errors.

Criminalising purely civil transactions or wrongs: The police often dress simple breach of contract cases as criminal cases and present them before the court.

The police usually charge persons who breach contracts with defrauding by false pretense, fraudulent breach of trust, etc. Many people are in prison for breach of contracts. To check these prosecutorial errors, trial judges should endeavor to maintain that thin line between civil cases and criminal cases. Prosecutors should desist from using criminal law to enforce purely civil contracts and undertakings.

Short or non-service of the charge sheet on the accused: In criminal trials, the accused must be served with the charge sheet and other documents the prosecution intends to rely on. The purpose of the charge sheet is to give the accused and his counsel sufficient information about the charge and the case of the prosecution.

This helps the accused and his counsel prepare a defense. Sometimes, the prosecutor serves the charge sheet on the accused in the courtroom few minutes before the case is called. In worst instances, the accused are never served at all. This is a fundamental error.

Inflaming the passion or prejudice of the judge or jury against the accused: Indeed, the prosecutor's duty to protect the fairness of judicial proceedings assumes special importance when he is presenting evidence to the court. He must refrain from any conduct that is likely to inflame the passion or prejudice of the judge against the accused. A prosecutor should present his case in a manner that accords with proper professional prosecutorial standards.

Presenting a case without factual and/or legal basis: It is clear that the prosecutor has the duty to refrain from improper prosecutorial methods calculated to produce a wrongful indictment. The prosecutor should invoke the criminal process only where he believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law. Presenting a legally or factually baseless case is a prosecutorial fundamental error and an abuse of the court’s process.

Induced guilty pleas: A major cause of wrongful convictions is imporper or induced guilty pleas. In some cases, prosecutors use improper inducements to get accused persons, especially unpresented accused persons, to plead guilty to charges in court in exchange for some favours and mercy from the judge.

Some prosecutors tell accused persons to plead guilty so that they (prosecutors) would persuade the judge to impose only a fine on the accused person or to discharge him. It is improper for a prosecutor to persuade, influence, or induce an accused person to plead guilty to a charge. The decision to plead guilty in court must be freely exercised by the accused.

Striving to get a conviction at all costs: It is a cardinal principle of criminal procedure that prosecuting counsel in criminal cases must not strive to obtain a conviction at all costs. The purpose of a criminal trial is not to get people jailed by fair or foul means.

Rather, the purpose of the criminal trial is to do justice. The prosecutor is said to be a minister of justice who has nothing to win or lose from the outcome of the case but who must ensure that a just and true verdict is rendered.

Prosecutorial overzealousness and hostility: It should be stated that criminal prosecution is not persecution. The prosecutor is required by law to prosecute and not to persecute the accused. Prosecutorial hostility is misconduct. The prosecutor should not behave as if he has a personal confrontation with the accused.

Criminal prosecution must be conducted without prejudice, ill-motive, or personal resentment against the accused. Open hostility by the police and the prosecution weakens the accused person’s defense.

Routine opposition to bail and insistence on remand: It is common in our courts for prosecutors to routinely oppose bail applications without legal or factual basis. It is misconduct for the prosecutor to insist on remand where it is clear that the grant of bail will pose no prejudice to the prosecution or the administration of justice in general. Bail is a right, and should be not routinely opposed without basis.

Suppression of evidence: The prosecutor must not suppress or keep back from the court evidence or witnesses whose testimonies are relevant to the determination of guilt or innocence of the accused. He must present a complete picture and not one side of the picture. He has to be fair to both sides in the prosecution of the case. Suppression of evidence favorable to the accused is itself sufficient to amount to a denial of due process.

Ambush prosecution: The prosecutor should avoid ambush prosecution. Prosecutors sometimes resort to ambush prosecution and employ tactics to outwit the defense while hoodwinking the court to convict the accused. Suppression of evidence is a form of ambush prosecution. Disclosure in criminal trials is necessary to avoid surprises and ambush prosecution.

Conflict of interest: A fair administration of justice abhors conflict of interest on the part of the prosecutor. A prosecutor must not place himself in a situation in which there is likely to be a conflict of interest in the exercise of his prosecutorial functions. A prosecutor must be disinterested in the cases he prosecutes. Prosecutorial biases lead to misconduct that affects the liberty of the individual.

Conclusion

It is clear that criminal prosecution is not persecution or warfare. Criminal prosecution is an enlightened judicial process that requires strict observance of laid down rules, procedure,s and professional standards. A prosecutor, whether a lawyer or police officer, should not conduct himself and his cases in a manner inconsistent with the proper function of a minister of justice.

The duty of a prosecutor is to do justice and not to unfairly secure the conviction of the accused. Convicting and punishing an innocent person is a serious blunder indeed. Prosecutors should conduct themselves professionally to uphold and preserve the integrity of the judicial process.