Monday, September 5, 2011

Role of the District Attorney


In my practice, I must deal with the district attorney (DA) or one his representatives on a daily basis.  The DA and the criminal defense attorney form the adversarial pairing that create the basis of our criminal justice system. 

But what is the role and duties of the DA and how does the DA affect the community that he serves?  The DA or solicitor (misdemeanor cases) is an elected representative of the executive branch of government.  He serves as a link between law enforcement officers and the trial of cases.  He has the duty to see that the law is enforced, but this duty is to seek justice and not merely convict.  This little known aspect of a prosecutor’s job is important because it allows the DA to negotiate criminal cases in good faith whereby a defendant can avoid convictions and even prosecutions under some circumstances. 

In fact, a weakness in the adversarial system of administering justice is the possibility of unfairness arising (sometimes) from the prosecutor’s superior resources and special access to information and witnesses.  To protect the accused who might suffer from this unequal contest, Canon 5 of the American Bar Association Canons of Professional Ethics commands: “The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.  As an officer of the court, the DA has an obligation to ensure that proceedings are conducted in accordance with the rules of evidence and the laws of this State. 

The DA necessarily has discretion in which cases are to be tried.  For example, this discretion is demonstrated in the non-criminal disposition of some cases and in his action in connection with the placing of a case on a dead-docket (a case placed on hold for prosecution) or a nolle prosequi (dismissal after indictment), or in a dismissal prior to indictment. 

However, his discretion in the prosecution of a criminal case starts long before the steps in a criminal prosecution mentioned before and continues to some extent even after a defendant is sentenced.  But, there are limitations placed on the authority.  For example, Georgia provides no statutory authority to the prosecutor to dismiss criminal charges before indictment.  Also, a nolle prosequi cannot be entered without the consent of the trial judge. 

With all this being said, the main responsibility for the DA and the solicitor is to prosecute legitimate criminal offenses and protect the community from dangerous citizens living amongst us.  My experience has been that the vast majority of the prosecutors working in the west Georgia area are reasonable, professional, and mostly willing to work on the legal and factual aspects of our criminal cases which can benefit the defendant, the victim(s), the county, and the state by saving precious resources that would otherwise be used for costly trials and and court appearance. 

I would lastly like to wish all of my colleagues in the legal community and the community as a whole a very wonderful, safe, and happy Christmas season.  Be safe and careful on the roads and remember to keep God first in your life.

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