Constitutional Role of Prosecutor as a Constitutional Officer

Constitutional Role of Prosecutor as a Constitutional Officer By David N. Powell Executive Director Indiana Prosecuting Attorneys Council

Index 1. 2. 3. 4. 5. 6. Historical Origin of Office Indiana Constitution Indiana Code Discretionary Powers Limits to Discretion What might the future look like?

1. Historical Origin of Office Origins of American Prosecutor • Office of Attorney General • Dutch/British • Constitutions/statutes • Evolving case law

2. Indiana Constitution IND. CONST. ART. 7, section 16 Two points • Admitted to practice law in Indiana before the election • 4 year term beginning in January following the election. That’s it!

2. Indiana Constitution Mounts v. State, 496 N. E. 2 d 37, 1986 Ind. • Created by the Constitution • Authority to act comes from the Legislature • Legislative authority supersedes residual common law authority

3. Indiana Code The Duties are defined in Title 33, Article 39 of the Indiana Code. • Duties 33 -39 -1 -4 (investigator role) a) INVESTIGATE. Investigate allegations involving misdemeanors and felonies b) CHARGE. If a reasonable presumption of guilt exists, reduce the allegation to writing, subscribed and sworn to, & issue process for apprehension

3. Indiana Code The Duties of Prosecuting Attorney are defined in Title 33, Article 39 of the Indiana Code. • Duties 33 -39 -1 -5 (forensic role) 1. Prosecute felonies, misdemeanors or infractions and all suits on forfeited recognizances; 2. Superintend, on behalf of counties trust funds 3. All other duties required by law

4. Discretionary Powers Absolute Discretion to: • File a charge • Who to charge • When to file

4. Discretionary Powers Absolute Discretion to: • Dismiss a charge • Joinder of Offenses/Defendants • Grand Jury or Information

5. Discretionary Limits General • Judicial Supervision of conduct • Prescribed by the Legislature

5. Discretionary Limits General • Exercise discretion & in good faith • Exercise discretion Impartially

5. Discretionary Limits Vindictive Prosecution • A dishonest motive to punish • Retaliation for reliance on a constitutional right • Retaliation for taking an appeal

5. Discretionary Limits Selective Prosecution • A prosecution based upon: Race Religion Sex

5. Discretionary Limits Immunity Agreements • Use immunity • Transactional immunity

5. Discretionary Limits Plea Agreements • May limit discretion to file charges • Terms binding on neighbor Prosecutors

6. The Future? As the population shifts how does the State respond? Who pays for costs of criminal justice? Do we have a plan that involves the Courts, Prosecuting Attorneys, and Public Defenders?