The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Practically speaking, the public prosecutor is to be regarded as dominus litis. The subject of the trial is the indictment, the accused cannot be convicted of an offence not mentioned in the indictment, the evidence offered by the prosecutor is in practice the decisive material in the trial, and the prosecutor has first go of examining the accused and most, perhaps all, witnesses. Of course, the trial is conducted under the over-all responsibility and control of the judge, who may modify the sequence of events and decide when to go on with the next question (Sect. 150 AJA). Also, the judge – the chairman, when there is more than one judge – is entitled and obliged to put questions of his own ‘in the interests of truth’ (Sect. 873 AJA) and is even, exceptionally, entitled to order the production of evidence beyond the wishes of the parties, even evidence withdrawn by the party concerned (Sect. 880 AJA). In practice, the powers mentioned in Sect. 873 are used daily, whereas the far-reaching rights inherent in Sect. 880 are only applied indirectly.
The prosecutor is entitled to charge the suspect with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime, and not seldom does so. This happens most often when there is a possibility of a shortened trial on the basis of a confession (Sect. 922 AJA). If out of ten counts the accused admits to seven, the prosecutor may well consider that the penalty for all counts will at the most bring about a small supplementary penalty in proportion to the expected penalty for the admitted counts. Then, if the amount of work necessary to produce the evidence for the last three counts is considerable, a good prosecutor ought to give in. Even if the judge in his heart of hearts considers the evidence sufficient for conviction on all counts, he cannot order the prosecutor to continue the case on all counts. Also, it is not uncommon that charges be reduced in order to have the case tried in an full bench court of the first instance (legally trained chairman and two lay assessors) instead of in the High Court with a jury. The criterion for jury trial is that the prosecution demands a penalty of four years or more. A weak case of attempted murder – expected penalty, say, six years – may well be reduced to a strong case of bodily assault under aggravating circumstances, where the prosecutor will attempt to obtain a penalty just below four years.
The court may change the statutory name of the charge, e.g., convict for embezzlement (Sect. 278 CC) though the charge is fraud (Sect. 279 CC) or change trivial details, e.g., convict for an offence committed Tuesday instead of Wednesday as charged (Sect. 908 subs. 4 AJA). Traditionally, it is considered that the court is entitled to convict for a lesser crime than charged, e.g., an attempted crime though the charge is a completed crime, or theft of 50,000 Dkr., though the charge is theft of double that amount, or robbery using an unloaded weapon, though the charge is robbery with a loaded weapon. On the other hand, the court is not entitled to convict for an offence not mentioned in the indictment (Sect. 908 subs. 3 AJA) or to change the charge in any material respect without giving parties, especially the accused, the possibility to conduct their part of the case accordingly. For example, if the accused has an alibi for Tuesday, he ought to be notified beforehand if the court considers changing the date to Wednesday, giving the accused a chance of tendering an alibi for that day too.
The public prosecutor may reduce the charge if deemed necessary during the court session, e.g., if it turns out that the original charge is clearly untenable, but a lesser charge may well be proved. Yet, the prosecutor may only change the charge in a material respect, or add to it after the beginning of the trial, with the consent of both the court and the accused (Sect. 833 AJA). If such consent is not obtained, the prosecutor may instead file a new case. The pending charge remains. If the accused is found guilty both on the old charge, wholly or in part, and on the new charge, the combined penalty in both cases must not exceed the hypothetical penalty in the case that both charges had been tried simultaneously.
The party producing the witness, in most cases the prosecution, has first go at putting questions to him, then the other party, and finally the court (Sect. 183 AJA). The basic elements of cross-examination thus exist, but cross-examination in the form known in Anglo-Saxon systems is used in Denmark, at least not in the same guise. Probably, this is caused by the fact that the rules of evidence are less form-bound in Denmark. For example, though we have rules on documentary evidence (Sect. 877 AJA), the doctrine of hearsay is only weakly developed in Denmark. Also, we have no special rules concerning the examination of hostile witnesses. The practice of examining the accused militates against the rigorous cross-examination of the accused known in the British tradition. There is thus no rigid division between examination-in-chief, cross-examination, re-direct, or re-cross, though normally parties attempt some kind of order in their questioning. The chairman has the general direction (Sect. 150 AJA) rules on disputes, and may put unruly parties to order.
The accused is heard first as a rule (Sect. 868 AJA). He is not, as in Anglo-Saxon systems, called as defense witness after the close of the prosecution’s case, nor as in classic inquisitorial systems, questioned by the court, but by the prosecutor, whose interrogation thus combines examination-in-chief and cross-examination. It is impossible to say which of the three solutions is best, neither is probably ideal. After the prosecutor’s examination of the accused, defense counsel can question him, and finally the court, i.e., the chairman, although it is not completely unheard of for lay assessors to put questions. The accused is entitled to comment on each witness’ statement (Sect. 870 AJA) but it has been held repeatedly that only the unrepresented accused is entitled to question the witness himself.
The public prosecutor makes an opening speech in bigger cases, especially jury cases and bigger economic cases, but as a rule not in ordinary cases. On the other hand, both prosecutor and defense counsel – in that order – always make a closing speech (Sect. 883 AJA) and possibly there is one more speech on either side, before the accused has the last word. The closing speech may contain both remarks on the factual evidence and on points of law; only in jury cases counsel must refrain from arguing points not within the jury’s competence. On the other hand, in a jury case, after a verdict of guilty, prosecutor and defense counsel make another closing speech – possibly two speeches as before – on the sentence to be imposed. Also, the prosecutor recommends for which offence the defendant is to be sentenced and, remarks on the sentence to be imposed. If the scale of sentencing is very clear, for example, in cases of drink driving, the prosecutor will request an exact sentence In other cases the prosecutor will only say, e.g., ‘a custodial sentence’, or ‘a term of imprisonment indicated in months’. Until three months prison sentences are computed in days, from three months and upwards in months and years and ‘indicated in months’ thus means ‘at least three months’, or possibly, ‘I shall not protest against a suspended sentence’.
The judge is not bound by the request of the prosecutor – no principle of ne ultra petita partium in Danish criminal justice – but if the request is very precise, the judge will, in practice, refrain from imposing a stiffer sentence than that indicated by the prosecutor.
The Role of the Public Prosecutor in Court
Practically speaking, the public prosecutor is to be regarded as dominus litis. The subject of the trial is the indictment, the accused cannot be convicted of an offence not mentioned in the indictment, the evidence offered by the prosecutor is in practice the decisive material in the trial, and the prosecutor has first go of examining the accused and most, perhaps all, witnesses. Of course, the trial is conducted under the over-all responsibility and control of the judge, who may modify the sequence of events and decide when to go on with the next question (Sect. 150 AJA). Also, the judge – the chairman, when there is more than one judge – is entitled and obliged to put questions of his own ‘in the interests of truth’ (Sect. 873 AJA) and is even, exceptionally, entitled to order the production of evidence beyond the wishes of the parties, even evidence withdrawn by the party concerned (Sect. 880 AJA). In practice, the powers mentioned in Sect. 873 are used daily, whereas the far-reaching rights inherent in Sect. 880 are only applied indirectly.
The prosecutor is entitled to charge the suspect with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime, and not seldom does so. This happens most often when there is a possibility of a shortened trial on the basis of a confession (Sect. 922 AJA). If out of ten counts the accused admits to seven, the prosecutor may well consider that the penalty for all counts will at the most bring about a small supplementary penalty in proportion to the expected penalty for the admitted counts. Then, if the amount of work necessary to produce the evidence for the last three counts is considerable, a good prosecutor ought to give in. Even if the judge in his heart of hearts considers the evidence sufficient for conviction on all counts, he cannot order the prosecutor to continue the case on all counts. Also, it is not uncommon that charges be reduced in order to have the case tried in an full bench court of the first instance (legally trained chairman and two lay assessors) instead of in the High Court with a jury. The criterion for jury trial is that the prosecution demands a penalty of four years or more. A weak case of attempted murder – expected penalty, say, six years – may well be reduced to a strong case of bodily assault under aggravating circumstances, where the prosecutor will attempt to obtain a penalty just below four years.
The court may change the statutory name of the charge, e.g., convict for embezzlement (Sect. 278 CC) though the charge is fraud (Sect. 279 CC) or change trivial details, e.g., convict for an offence committed Tuesday instead of Wednesday as charged (Sect. 908 subs. 4 AJA). Traditionally, it is considered that the court is entitled to convict for a lesser crime than charged, e.g., an attempted crime though the charge is a completed crime, or theft of 50,000 Dkr., though the charge is theft of double that amount, or robbery using an unloaded weapon, though the charge is robbery with a loaded weapon. On the other hand, the court is not entitled to convict for an offence not mentioned in the indictment (Sect. 908 subs. 3 AJA) or to change the charge in any material respect without giving parties, especially the accused, the possibility to conduct their part of the case accordingly. For example, if the accused has an alibi for Tuesday, he ought to be notified beforehand if the court considers changing the date to Wednesday, giving the accused a chance of tendering an alibi for that day too.
The public prosecutor may reduce the charge if deemed necessary during the court session, e.g., if it turns out that the original charge is clearly untenable, but a lesser charge may well be proved. Yet, the prosecutor may only change the charge in a material respect, or add to it after the beginning of the trial, with the consent of both the court and the accused (Sect. 833 AJA). If such consent is not obtained, the prosecutor may instead file a new case. The pending charge remains. If the accused is found guilty both on the old charge, wholly or in part, and on the new charge, the combined penalty in both cases must not exceed the hypothetical penalty in the case that both charges had been tried simultaneously.
The party producing the witness, in most cases the prosecution, has first go at putting questions to him, then the other party, and finally the court (Sect. 183 AJA). The basic elements of cross-examination thus exist, but cross-examination in the form known in Anglo-Saxon systems is used in Denmark, at least not in the same guise. Probably, this is caused by the fact that the rules of evidence are less form-bound in Denmark. For example, though we have rules on documentary evidence (Sect. 877 AJA), the doctrine of hearsay is only weakly developed in Denmark. Also, we have no special rules concerning the examination of hostile witnesses. The practice of examining the accused militates against the rigorous cross-examination of the accused known in the British tradition. There is thus no rigid division between examination-in-chief, cross-examination, re-direct, or re-cross, though normally parties attempt some kind of order in their questioning. The chairman has the general direction (Sect. 150 AJA) rules on disputes, and may put unruly parties to order.
The accused is heard first as a rule (Sect. 868 AJA). He is not, as in Anglo-Saxon systems, called as defense witness after the close of the prosecution’s case, nor as in classic inquisitorial systems, questioned by the court, but by the prosecutor, whose interrogation thus combines examination-in-chief and cross-examination. It is impossible to say which of the three solutions is best, neither is probably ideal. After the prosecutor’s examination of the accused, defense counsel can question him, and finally the court, i.e., the chairman, although it is not completely unheard of for lay assessors to put questions. The accused is entitled to comment on each witness’ statement (Sect. 870 AJA) but it has been held repeatedly that only the unrepresented accused is entitled to question the witness himself.
The public prosecutor makes an opening speech in bigger cases, especially jury cases and bigger economic cases, but as a rule not in ordinary cases. On the other hand, both prosecutor and defense counsel – in that order – always make a closing speech (Sect. 883 AJA) and possibly there is one more speech on either side, before the accused has the last word. The closing speech may contain both remarks on the factual evidence and on points of law; only in jury cases counsel must refrain from arguing points not within the jury’s competence. On the other hand, in a jury case, after a verdict of guilty, prosecutor and defense counsel make another closing speech – possibly two speeches as before – on the sentence to be imposed. Also, the prosecutor recommends for which offence the defendant is to be sentenced and, remarks on the sentence to be imposed. If the scale of sentencing is very clear, for example, in cases of drink driving, the prosecutor will request an exact sentence In other cases the prosecutor will only say, e.g., ‘a custodial sentence’, or ‘a term of imprisonment indicated in months’. Until three months prison sentences are computed in days, from three months and upwards in months and years and ‘indicated in months’ thus means ‘at least three months’, or possibly, ‘I shall not protest against a suspended sentence’.
The judge is not bound by the request of the prosecutor – no principle of ne ultra petita partium in Danish criminal justice – but if the request is very precise, the judge will, in practice, refrain from imposing a stiffer sentence than that indicated by the prosecutor.
