THE CONCEPT “PROSECUTOR”

The prosecutor is one of the two adversaries who face each other every day in the criminal trial process: the prosecutor, who represents the State’s interest and serves as the “people’s attorney,” and the defence attorney, who represents the accused (Siegel, 2010:387). Siegel and Bartollas (2012:35) further add to the discussion that the prosecutor is an appointed or elected member of the practising bar who is responsible for bringing the State’s case against the accused.

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For Joubert (2009:69), a public prosecutor must display the highest degree of fairness to an accused. Bugliosi (2000:1) further highlights that in order to master the art of prosecution, the prosecutor should have the following characteristics:

 Credibility

Credibility is the most important attribute of a good prosecutor. Credibility is also essential for achieving success, both inside and outside the court room. Credibility is the word spoken most often by all parties during a trial.

 Intelligence

The prosecutor needs to have mastered all the relevant criminal law, including criminal procedure and evidence.

 Diligence

A prosecutor must be diligent, not only in learning the law but in every aspect of the job. Additionally, before trial, a prosecutor must thoroughly prepare all the witnesses, the voir dire, opening, all “crosses” refer to cross-examining witnesses and as much of the closing argument as practicable.

 Self-sufficiency

To be effective, a prosecutor must also be self-sufficient. That is, a prosecutor must have the ability to work alone in an extremely stressful environment. They must also be able to control or manage stress, pressure, and adversity, which are the by-products of a system that places such a heavy burden on the prosecutor.

 The ability to convict

The final attribute of an effective prosecutor is the ability to convict.

In South Africa, according to Van der Merwe and Du Plessis (2004:524) and Joubert (2009:62), a prosecutor is authorised by the National Director of Public Prosecutions to negotiate with an accused who is legally represented before the accused pleads. Van der Merwe and Du Plessis (2004:524) and Joubert (2009:62) state that the accused to the offence charged or to an offence of which he or she may be convicted on the charge, and if the accused is convicted of such offence, the prosecutor and accused may enter into an agreement to:

 A just sentence to be imposed by the court; or

 The postponement of the sentence in terms of certain provisions; or

 A just sentence to be imposed by the court of which the operation of the whole or any part has to be suspended in terms of certain provisions, and

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To the directive “Based on your experience, define the concept ‘prosecutor’,” Sample “A” responded as follows:

 Four participants mentioned that a prosecutor is a legally qualified person who handles criminal matters on behalf of the State.

 Five participants stated that the prosecutor is an official responsible for conducting a prosecution on behalf of the State and who reads dockets, leads the investigation and decides to prosecute or not.

To the directive above, Sample “B” replied as follows:

 All four participants mentioned that section 179 of the Constitution defines the prosecutor in the simplest terms a prosecutor is a designated, legally qualified person who institutes criminal prosecution on behalf of the State in criminal courts.

From the above, it is clear that the term prosecutor partly refers to a person with a law degree who reads case dockets that have led the police or investigating officers during the investigation and who then decides to prosecute or not. As still another dimension, a prosecutor can review the work of the investigator and can avert any potential challenges to the admissibility of evidence early on. This response is nearly similar to the discussion of Cole and Smith (2008:211) and Siegel and Bartollas (2012) explained above. All participants from Samples “A” and “B” had a clear understanding of the meaning of concept prosecutor.

The researcher has deduced from the literature review and responses of the samples that the prosecutor determines and eventually shapes the way in which justice is exercised in the general public. For this reason, prosecutors have great influence because they are concerned with all aspects of the criminal justice process, as submitted by Cole and Smith (2008:212).

Based on the research, the concept prosecutor refers to an appointed or elected member of the practising bar who is responsible for bringing the State’s case against the accused. The literature and the participants are in agreement on this point. A slightly different definition, which was provided by four of the nine participants of Sample “A”, is that a prosecutor is a legally qualified person who handles criminal matters on behalf of the State.

31 2.4 THE OBJECTIVES OF PROSECUTION

According to Levinson (2002:941), prosecution is characterised by the indictment, which contains the objective and subjective details of the accusation and may be exercised either by starting ordinary legal proceedings or by triggering one of the special, or fast– track, proceedings. Grover (2010:485) is of the opinion that, to this end, the prosecution will prove that the accused was both aware of the existence of the facts relevant to the objective elements of the crimes and accepted the substantial likelihood that his acts or omissions would result in the realisation of these objective elements. This means that the objectives of prosecution go beyond a mere premise of presenting the case against the accused because if the prosecutor is aware of evidence in favour of the accused, that evidence must be presented to court (Joubert, 2010:33). The similarity between local authors and international authors is provided in the summary by Marianne and Ballin (2011:283), who list the objectives of prosecution as “discovering the ‘truth’; utilising an adversarial process of adjudication; utilising an accusatorial system of proof; minimising erroneous convictions; minimising the burdens of accusations and litigation; providing for lay participation; representing the dignity of the individual; and maintaining the appearance of fairness”.

The literature regarding the South African situation does not differ from the international literature in this respect. This is also pertinent to the objectives of prosecution because what these authors argue is that it is as important to exonerate the innocent as it is to convict the guilty.

The participants in Sample “A” were asked “What, in your experience, are the objectives of prosecution?”, and the following answers were provided:

 Two participants said that prosecution is aimed at bringing the suspect before a court of law so as to answer the allegations against them.

 Seven participants stated that the objective of prosecution is to reveal the truth about a particular allegation so that the court can decide on the guilt or innocence of the accused person.

Sample “B” replied as follows:

 One participant responded that the objective is to determine the guilt of the person arrested for the crime.

 Three participants indicated that the objective of prosecution is to prosecute all those who are guilty of the allegations and prosecute without fear, favour or

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The submissions of the participants are in line with what is provided in both the national and international literature. All the sources of data in this research are in agreement that the objective of prosecution is to present the evidence before the court of law so that the court can decide on the guilt or the innocence of the accused person/s. All the sources of data touch on the fairness that must prevail during prosecution and the fact that the enforcement of law encourages prosecutors to be fair and objective and not to be affected by improper or undue pressure from any source.

The researcher concluded that the objectives of prosecution include bringing the perpetrators before the courts and presenting the State’s case before the court as highlighted by Joubert (2010).