Public prosecution

“ For the tort of malicious prosecution, courts emphasized the “necessity” of both the “allegation” and “proof” of probable cause, in light of the public interest “that criminals should be brought to justice.” ”

“ Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial; that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. ”

“ But while our laws affecting court practice are very bad, they do afford the means of ultimately bringing criminals to trial and convicting them if the evidence is sufficient and the jury unbiased and uncorrupted. It only requires that the public maintains its interest and thereby sustains its officials in their efforts to secure justice. ”

“ A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be,-a prevailing popular excitement; powerful influences brought to bear on the public mind, or on the mind of the jury ”

“ Public prosecutions against the authority of the United States are in the circuit courts within the exclusive direction of the district attorneys, but they have nothing to do with prosecutions against the statutes, peace, and dignity of a State. ”

“ The official men who have the conducting of the prosecution, are not only, generally speaking, men of much smaller abilities than those who have the conducting [195] of the defence, but upon political grounds, as well as from that general aversion which men have to the sanguinary operations of the law, the feeling of the public is opposed to them, and in favour of their antagonists. ”

“ The public prosecutor, as being the person entrusted with the interest of [Pg 189] the community, and as representing the community, has the primary right to take up the matter; and, having commenced proceedings for behoof of the community, he cannot be stayed or hindered, or impeded in his prosecution for punishment, by any right or any interest which any private party can claim; and he may do, and daily does, many things which exclude the private party from demanding punishment.... ”

“ Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law ; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose. ”

“ But the public prosecutor is not, as I understand it, hired to convict but to represent the 'people,' one of whom is the accused. Now, is the State interested in convictions only—does it employ a man to see that its citizens are found guilty of crime, or is it to see that justice is done and the facts arrived at in the interest of all the people, including the accused? ”

“ The State pays an officer to sift, probe, collect and array the evidences of crime, with which the criminal is stoned to death; does it likewise commission and compensate an equally painstaking, lynx-eyed official whose sole duty is to hunt and proclaim proofs of the innocence of the accused? The great body of the commonwealth is committed in revengeful zeal to prosecution; upon whom devolves the doubly sacred and imperative duty of defence? ”

“ It is in the power of the magistrate to determine, what evidence is sufficient to send a man to prison; that he may be proved innocent, he must first be supposed guilty. This is what is called an offensive prosecution ”

“ The Constitution and Bill of Rights declare in sweeping unequivocal terms that 'The Trial of all Crimes * * * shall be by Jury,' that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' and that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.' As it may now be punished criminal contempt is manifestly a crime by every relevant test of reason or history. ”

“ To entitle a private party to prosecute, he must have an interest, not remote or feeble, but immediate and powerful in the cause; the wrongs alleged must be wrongs done to the person, and “of a high and aggravated kind, such as may naturally excite strong feelings of anguish and resentment in the minds of the kindred of the sufferer;” an oath of calumny must be taken by the prosecutor, if required by the party accused; caution must be found to insist in the prosecution ”

“ Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation. ”

“ Personal crimes involving afflictive or ignominious punishments, committed by a member of the Senate, Tribunate, Legislative Body, or Council of State, are prosecuted before the ordinary tribunals only after a decision of the body to which the accused belongs has authorised that prosecution. ”

“ Whatever tentative and intermediate steps experience makes permissible for aiding the State in establishing the ultimate issues in a prosecution for crime, the State cannot be relieved, on a final show-down, from proving its accusation. ”

“ And we have frequently set aside state criminal convictions as a denial of due process of law because of coercive questioning of suspects by public prosecutors and other law enforcement officers in their official chambers. ”

“ But, my lords, we have in the present case no provocations from crimes either openly avowed, or evidently proved; and certainly no incitement from necessity to exert the power of the house in any extraordinary method of prosecution. We may punish whenever we can convict, and convict whenever we can obtain evidence; let us not, therefore, condemn any man unheard, nor punish any man uncondemned. ”

“ The legislature, with the intention of stimulating the exertions of police-officers, and inducing others to give information, had awarded certain rewards to the parties who should contribute to the conviction of offenders against the laws. The object was laudable, but it was capable of great perversion, and was liable to many objections; it gave the prosecutor an interest in the conviction of the accused, and on that account tended to impress the public with the belief that the condemnation, and not the acquittal of the prisoner, was the object of our criminal laws. ”

“ Therefore the mere fact that a prosecution is preferred against me for that act, and for those words, is the expression of an opinion on my part that this country does not at present enjoy real constitutional institutions, guaranteeing a free trial—guaranteeing that the man accused shall be really put upon his country. Therefore it is absurd to think that any twelve honest men, my neighbours, put upon their oaths, would declare that to be a crime which it is probable that, at least, four-fifths of them believe to be right—right both constitutionally and morally. ”

“ They were well aware that any individual might some day be subjected to criminal prosecution, and it was in order to protect the freedom of each of us that they restricted the Government's ability to punish or imprison any of us. ”

“ 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. ”

“ In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions “against the form of the statute” and “against the peace” are still in use. ”

“ Every thing adverse to these principles, and certainly every novelty adverse to them, must be repugnant to the spirit of the law. The proceedings which the informant now resists are of this character; while the prayer he has preferred to your Lordships is plainly in unison with those great principles which are at the foundation of our criminal code, and are intermingled with the administration of it. Your Lordships have before you the case of a prisoner who has had the misfortune to be accused by the Public Prosecutor of acts of murder, of which he may have been innocent or guilty. ”

“ In a prosecution such as this, conducted against one of its citizens by a government, what should be the course of that government, and what is due to the jury and to the prisoner? Whatever there is that can throw light upon the alleged crime should be let into the jury box. All evidence that could go before the human mind calculated to impress it with conviction, or modify its opinions, should be allowed to come before you. What has been the case with regard to this trial? ”

“ First, one might just as well argue that the Constitution requires absolute immunity from prosecution wherever the Government has obtained an inadmissible confession or other evidence through an illegal search and seizure, an illegal wiretap, illegal detention, and coercion. A coerced confession is as revealing of leads as testimony given in exchange for immunity and indeed is excluded in part because it is compelled incrimination in violation of the privilege. ”

“ 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. ”

“ If the defense believes that a fair trial is unlikely because of community prejudice, that is a matter for proof by the defense, and, when proved, should constitutionally warrant, and indeed demand, a change of venue in any case, whether the prosecution be for a felony or for a misdemeanor. ”

“ Against this background of the purposes of the speedy-trial safeguard, I turn to the question of when during the criminal process the right attaches. A criminal prosecution has many stages, and delay may occur during or between any of them. It may take place at the beginning of the process: between the time at which the government decides to prosecute a man and has sufficient evidence to proceed against him and the actual time of his arrest or indictment. ”

“ Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. ”

“ In any other context than one of contempt, the idea that a criminal prosecution and a civil suit for damages or equitable relief could be hashed together in a single criminal-civil hodgepodge would be shocking to every American lawyer and to most citizens. ”

“ When a state prosecution has been determined upon, every step ought to be carefully and anxiously considered, and subordinate officials should not be permitted by acts of officious zeal to compromise their superiors and bring discredit on the administration of the law. ”

“ If the accused has no lawyer, the court must appoint one for him. While a man so appointed must defend the case, the best lawyers are not secured in this way. There has been considerable demand for the creation of the office of public defender for accused persons. The State employs public prosecutors, and it is argued that it should be as much interested in proving a man’s innocence as in proving his guilt. ”

“ If actions, indifferent in themselves, or even useful to the public, were called crimes, both the accusation and the trial could never be too secret. But can there be any crime, committed against the public, which ought not to be publicly punished? I respect all governments ”

“ 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. ”

“ They say, that this doctrine must be held, because it flows as a necessary and irrefragable consequence from the constitutional right of prosecution, which has been proved to exist. If the right be in the private party, how can it be wrested from them, by the communications which pass between the criminal and a third party over whom they have no control, but to whom, on the other hand, the law gives no power of depriving them of that right of demanding justice and vengeance which it has vested in them? ”

“ It became a matter of serious concernment to have it clearly and well decided by the highest legal authorities, what are the extent and limits of the Lord Advocate’s powers as Public Prosecutor, to enter into compacts with associates in crime, whereby he may afford them an immunity from punishment for participation in crimes, on condition of their affording such evidence as may be requisite for the discovery and punishment of offences, in cases, which from their very nature, can neither be traced out nor established to conviction of the delinquents, without such information and evidence ”