The Development of the Role of the Prosecuting Lawyer in the Criminal Process: Partisan Persecutorr or Minister of Justicee?

Abstract

The role of the prosecuting lawyer in the criminal process has traditionally been regarded with suspicion and distrust, if not outright hostility. This unfavourable view extends to both the popular and the historical perception. The prosecutor has been regarded widely as a zealous and partisan advocate, a so-called persecutor, whose single purpose is to secure the conviction of the accused. This Article considers the development of the prosecutor’s role to the present day. It will explore the changing perception of the prosecutor from that of the zealous persecutor during the State Trials of the 16th and 17th centuries to that of the early 1800s when there seems to have been a fundamental shift in what was regarded as the proper role of the prosecutor. It became emphasised increasingly in a series of landmark cases from the early 1800s onwards that the prosecutor was not to regard himself or herself purely as a partisan advocate whose role was confined to seeking the conviction of the accused. Rather, the prosecutor owed a wider duty, that of a quasi-judicial “minister of justice” whose lofty purpose was to seek the truth of the case and to promote the cause of justice. This role has continued to the present day. It is my argument that to understand this dramatic transformation in the prosecutor’s role one must have close regard to the legal and social climate of the time in which it evolved. The development of the prosecutor’s role as a “minister of justice” was in response to both the major changes in the format of the criminal trial and belated appreciation as to the nenviable position of the accused in the criminal process of the time. In the 1700s the typical criminal trial in England had been an almost inquisitorial affair consisting of an informal dialogue between the private prosecutor, the accused, the judge and the witnesses. Lawyers, whether prosecuting or defending, were largely conspicuous by their absence. In the late 1700s and early 1800s the presence and involvement of lawyers in the criminal trial increased and the criminal process shifted sharply in form to an adversarial process. Furthermore the odds were stacked heavily against the typical accused in the early 1800s. Rights that would today be regarded as fundamental aspects of the right of an accused to a fair trial were sorely lacking. It is my argument that to alleviate the unequal status of the accused in the criminal process the notion gained acceptance that the prosecuting lawyer was to act, albeit within an emergent adversarial framework, as a “minister of justice” and not as a “normal” advocate. This Article will ask whether it is appropriate to accept the generally unchallenged assumption that the role of the modern prosecutor in Australia and England should remain that which evolved in the particular and very different circumstances of early nineteenth century England.