Criminal prosecution

“ A criminal prosecution directed on European criminal procedure at once passes into the hands of the state as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. In England the repression of all minor crime is left to the injured party. ”

“ Notwithstanding what has been said in some decisions of a distinction between actions for criminal prosecutions and civil suits, both classes at the present day require substantially the same essentials. Certainly an action for instituting a civil suit requires not less for its maintenance than an action for a malicious prosecution of a criminal proceeding. ”

“ Criminal pleadings have, however, one peculiarity. Indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (See Indictment.)
3. Criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. There is not in England, as in Scotland and all European countries, a public department concerned to deal with all prosecutions for crime. The result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices’ clerk. ”

“ The evidence that justifies a man’s imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative one—that is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant cases—is of very scant use in the tribunals of Europe. ”

“ The Fifth and Sixth Amendments provide that as a part of due process of law a person held for criminal prosecution shall be charged on a presentment or indictment of a grand jury and that the defendant shall 'be informed of the nature and cause of the accusation.' The purpose of these requirements is obviously to compel the Government to state and define specifically what it must prove in order to convict the defendant so that he can intelligently prepare to defend himself on each of the essential elements of the charge. ”

“ Given the tendency of modern criminal legislation to divide the phrases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an esentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, [3] the potentialities for abuse inherent in the 'same evidence' test are simply intolerable. ”

“ Whether a prosecution for being 'found intoxicated,' subjecting the defendant to as much as 30 days imprisonment, is within the category of serious state criminal prosecutions to which the federal constitutional guarantee of assistance of counsel applies, under the decisions of this Court. ”

“ The court would, therefore, hesitate to take any summary action against the offender which might remove the inducements the injured party would otherwise have for proceeding criminally against him, and thus interfere with the course of justice. In this country, the prosecution of criminal offences is generally committed to the charge of a public officer, and sufficient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason, therefore, does not exist here, as in England, for leaving it to the injured party to prosecute for the criminal offence. ”

“ Today we have again stressed the rule that federal intervention affecting pending state criminal prosecutions, either by injunction or by declaratory judgment, is proper only where irreparable injury is threatened. ”

“ He is inclined to look for hidden motives for every prosecution. This gradually wears off and his attention becomes centred on the defendant himself. Will he put in a defence? Will he testify in his own behalf? What will he say? Little by little "O.C." gets to inventing defences to fit the facts established against the prisoner by the people's case. Meantime he is learning a little law. That "the people must prove the defendant's guilt beyond every reasonable doubt," and "that no unfavorable inference must be drawn as against the defendant from his failure to testify in his own behalf." ”

“ In the future, the lawful duty of the Secret State Police to prosecute all punishable offenses must be respected, and all cases of doubt with regard to such prosecution have to be reported directly to the appropriate Chief Public Prosecutor through the appropriate Gauleiter, or to the Reich Minister of Justice through the chief of the Party Chancellery, the aim being to [363] accomplish an administration of criminal prosecution which will comply with the interests of the Party. ”

“ Prosecution under R.S. § 102 is thus limited to a range far narrower than is a proceeding for contempt, either in court or at the bar of Congress. And even under the notoriously broad contempt power, punishment is justifiable only when a person has failed to comply with an order specifying precisely what he must do, and when he has power himself to do what is ordered. [1] Certainly no less precise standard should be established in prosecutions for violation of a criminal statute. ”

“ The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. ”

“ They readily appreciate that his counsel may honestly believe that as matter of law no case has been made out against him, and they bend their energies to the determination of the simple and unobstructed issue of whether the uncontradicted evidence of the prosecution has of itself established the guilt of the prisoner beyond a reasonable doubt. If he puts in a defence and calls witnesses to contradict those of the people, the jury are apt to concentrate their attention upon the question of the relative truthfulness of the witnesses on either side. ”

“ Apart from that, we public prosecutors are quite familiar with the role of defendants in criminal proceedings. A man like myself who, in 25 long years, became acquainted with the fate of men in prisons, in courtrooms, in penal institutions, and on the way to the place of execution, knows very well the tragedy of this role and one who, under the official robe, has preserved a human heart, will the better recognize that not blind zeal for prosecution, but much rather wisdom coupled with human understanding are best designed to serve the aim of true judicial administration. ”

“ If we are to adhere to the mandate of the Constitution and not give it merely that meaning which appeals to the personal tastes of those who from time to time sit here, we should read its terms in light of the realities of what 'criminal prosecutions' truly mean. ”

“ Sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth who [Pg 69] has fallen into their disfavor. Then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. ”

“ It will not be gainsaid that danger of abuse of this extraordinary power inheres in the absence of the safeguards usually surrounding criminal prosecutions, notably trial by jury and any but self-imposed judicial restraints upon the extent of punishment. ”

“ In this country it is the duty of the prosecution to prove the guilt, and unless that is done in such a way as to leave no shadow of doubt in the minds of the jury, a prisoner is entitled to be acquitted.
[Pg 12] There must be no speculation upon a man’s guilt. A man is regarded as innocent so long as it is impossible to connect to him the last link in a long chain of circumstantial evidence. ”

“ The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty, and to increase the number of trials. [5] Criminal trials, no matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. ”

“ Their claim should be evaluated by analyzing the real nature of criminal contempts and applying the policy of the constitutional requirement of trial by jury in 'allcrimes' and 'all criminal prosecutions.' [36]
5. ”

“ Justice would be more speedy and just as effective if the prosecution of all crimes were instituted before an examining magistrate, and the grand jury would then, at the summons of the court, meet to perform only those important and peculiar functions of investigation that are consonant with its dignity and necessary to the public weal. ”

“ In the eyes of the law, a person is charged with crime only when he is called upon in a legal proceeding to answer to such a charge. Mre investigation by prosecuting officers, or even the inquiry and consideration by examining magistrates of the propriety of initiating a prosecution, do not, of themselves, create a criminal charge. ”

“ To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. ”

“ I would hold that the defendants here were entitled to be tried by a jury after indictment by a grand jury and in full accordance with all the procedural safeguards required by the Constitution for 'all criminal prosecutions.' I am convinced that the previous cases to the contrary are wrong-wholly wrong for reasons which I shall set out in this opinion.
Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient. ”

“ THE proofs of the crime being obtained, and the certainty of it determined, it is necessary to allow the criminal time and means for his justification; but a time so short, as not to diminish that promptitude of punishment, which, as we have shewn, is one of the most powerful means of preventing crimes. A mistaken humanity may object to the shortness of the time, but the force of the objection will vanish, if we consider that the danger of the innocent increases with the defects of the legislation. ”

“ The fifth principle which I ask you to bear in mind, is that individual criminal responsibility of a defendant is imposed by the Charter not merely by reason of direct, immediate participation in the crime. It is sufficient for the Prosecution to show that a defendant was a leader, an organizer, instigator, or accomplice who participated either in the formulation or in the execution of a Common Plan or Conspiracy to commit Crimes against Peace. In the case of many of the defendants the evidence will show direct and immediate personal participation in the substantive crime itself. ”

“ Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, show, the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future. The policy of a century and a half against interference by the federal courts with state law enforcement is not to be set aside on such flimsy allegations as those relied upon here. ”

“ Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress. ”

“ I shall only add, that in a nation willing to prove the utility of moderate punishment, laws, which, according to the nature of the crime, increase or diminish the time of inquiry and justification, considering the imprisonment or the voluntary exile of the criminal as a part of the punishment, will form an easy division of a small number of mild punishments for a great number of crimes. ”

“ The concept of conspiracy as used by the Prosecution is entirely unknown to German law. I would like, therefore, to begin my short legal argument with two questions which give rise to doubts.
(1) May a criminal procedure, bent on realizing justice, employ legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people?
(2) How would this be consistent with the rule nullum crimen sine lege praevia, a principle which the British chief prosecutor has acknowledged as a fundamental principle of civilized criminal law? ”

“ If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying spirit can be most readily applied to the act.” [24]
At the same time, the following articles were added to the code of criminal procedure:
“Article 170a—If an act deserves punishment according to the sound sentiment of the people, but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law. ”