The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
In Spanish law, the prosecution service plays an essential role, although not quite dominus litis. The reason for this is probably the fact that, as we mentioned above, the prosecution service does not have the monopoly over prosecuting crime. Nevertheless, its intervention in the trial is essential in those case of crimes that are prosecutable ex officio (Sect. 105 CCP), although the injured party may have abandoned prosecution (Sect. 106 CCP). Furthermore, in crimes that need to be reported by the victim prior to initiating a criminal investigation, its intervention in the proceedings is also of key importance. Another matter is the rare case where the punitive system considers prosecution only at the petition of the plaintiff, that is to say, those cases that are considered private offences, in which the prosecution service does not intervene (Sect. 104 CCP).
Nevertheless, the plurality of procedures, and the different roles played by the parties intervening in them, make it rather complicated to describe the general role of the prosecutor in court proceedings. In general, the limitations set out here should be taken into account. As corpus alienum in the system the essential role played by the prosecutor in criminal procedures against juveniles must be taken into account, where he is a real dominus litis. In spite of everything, this is the exception to the general rule that governs ordinary criminal procedure.
In any case, it must be noted that, precisely because the prosecution service does not have the monopoly on criminal prosecution, it is possible to go ahead with a trial even when the prosecution service does not charge. What should its role be in such cases? It can renounce bringing charges or appear in court requesting acquittal.
In any case, it is worth noting that the action of the prosecution service is governed by two principles, which significantly mark the role of the service in all criminal procedures, both concerning criminal prosecution (described in the chapters above) and at the stage of hearing of evidence before the court. These two principles are the principle of legality and the principle of impartiality.
The principle of legality means that the prosecution service will act in accordance with the Constitution, the law and other regulations in force, putting the appropriate actions into practice where applicable, or objecting to those incorrectly put into practice to the extent and in the manner stipulated by law (Sect. 6 Prosecution Service Act).
And it is precisely the force of this principle of legality in our system that does not permit the prosecution service to decide to charge a suspect with a less serious offence than he should be charged with in view of the facts that are known. At the same time, this principle implies that crimes cannot be waived for reasons of lack of manpower should the prosecution service become overburdened. A solution to this problem has been the prosecution service's decision to uphold plea bargaining, specially in most recent years.
The principle of opportunity does not apply, except in the criminal procedure to demand criminal responsibility of juveniles. Legality is crucial in the role of the prosecutor in a criminal trial. It is true that there are certain manifestations of opportunity, but sporadically and unobtrusively.
This leads us to the role of the court in deciding on a penalty, that is, the question arises whether the court may disagree with the classification made by the prosecution service. In general the court may not disagree with the maximum limit by classifying the offence as a more serious offence and imposing a greater penalty. Nevertheless, in a criminal trial, Sect. 733 CCP permits the court, where it considers that the offence to be tried has obviously been wrongly classified, to apply an exceptional procedure that consists of offering the party the possibility of changing the classification, taking into account a certain circumstance that affects responsibility or even changing the criminal classification of the act. The Supreme Court has determined that in that case it is necessary that the party accepts the change, because without consent of the party the court may not modify or surpass what has been criminally classified by the complainant party. The possibility of reducing the charge is another matter altogether, that is, of course the court may convict the defendant for a lesser offence.
The reason for this limit is the need to conjugate the roles of the people involved in the proceedings so as to avoid violating the accusatory principle, which demands that someone other than the judge establish the limits of the criminal proceedings. These limits mark the boundary of judicial action. The penalty may thus be decreased but not increased.
In Spain the parties propose their own witnesses, although the principle of cross examination is perfectly integrated in the penal system. In all trials, and basically due to regulations that govern the hearing of evidence in different types of trial, cross examination is permitted. This practice is perhaps especially significant in trials by jury (Sect. 46.5OL 5/1995, Trials by Jury Act), where cross examination works like in the Anglo-Saxon system.
It must be noted that the order in which the different witnesses are questioned is determined by Sect. 701 CCP, so that the witnesses called by the prosecution service give evidence in the first place, followed by the other criminal plaintiffs and, finally, the witnesses proposed by the defendant. The witnesses are questioned in the order in which they were proposed by each party. The court may alter the order where applicable, at the request of one of the parties or ex officio where it considers it advisable to clear up the facts or to help discover the truth (Sect. 701 CCP in fine). The party that has called the witness must ask him the questions he thinks fit, although the other parties may ask whatever questions they wish that are relevant in relation to the answers (Sect. 708 CCP). The foreman may also, of his own accord or at the request of any of the jury members, ask the witnesses whatever questions he deems fit to get to the bottom of the facts about which they declare (Sect. 708, II CCP).
The prosecution service makes an opening speech, by virtue of Sect. 734 CCP. In this final intervention, the prosecutor sets out the facts that he considers proven during the trial, their legal classification, the participation of the defendants in them and the possible civil liability that may derive, where applicable, from the commission of the criminal act. In summary, this is the last opportunity to repeat the accusation, that is, it is an act that not only criticises the evidence heard in the trial and analyses and summarises the theses maintained, but also an act of accusation, that is to say, it once again delimits the classification of the act as a specific offence, as it was classified in writing in the provisional classification (Sect. 650 CPC), modified or considered conclusive in the oral proceedings (Sect. 732 CCP).
The court is conditioned to the classification regarding the maximum classification requested (it may not pass sentence for a crime of a different nature or a more serious one) by virtue of the accusatory principle. We must remember, nevertheless, that in Spain there can be a public accusation (the prosecution service) and private or the people’s accusation. In these cases, when there is another accusation, the court is conditioned in its decision by the maximum penalty requested by any of the accusatory parties that may have intervened, not only by the prosecution service.
The Role of the Public Prosecutor in Court
In Spanish law, the prosecution service plays an essential role, although not quite dominus litis. The reason for this is probably the fact that, as we mentioned above, the prosecution service does not have the monopoly over prosecuting crime. Nevertheless, its intervention in the trial is essential in those case of crimes that are prosecutable ex officio (Sect. 105 CCP), although the injured party may have abandoned prosecution (Sect. 106 CCP). Furthermore, in crimes that need to be reported by the victim prior to initiating a criminal investigation, its intervention in the proceedings is also of key importance. Another matter is the rare case where the punitive system considers prosecution only at the petition of the plaintiff, that is to say, those cases that are considered private offences, in which the prosecution service does not intervene (Sect. 104 CCP).
Nevertheless, the plurality of procedures, and the different roles played by the parties intervening in them, make it rather complicated to describe the general role of the prosecutor in court proceedings. In general, the limitations set out here should be taken into account. As corpus alienum in the system the essential role played by the prosecutor in criminal procedures against juveniles must be taken into account, where he is a real dominus litis. In spite of everything, this is the exception to the general rule that governs ordinary criminal procedure.
In any case, it must be noted that, precisely because the prosecution service does not have the monopoly on criminal prosecution, it is possible to go ahead with a trial even when the prosecution service does not charge. What should its role be in such cases? It can renounce bringing charges or appear in court requesting acquittal.
In any case, it is worth noting that the action of the prosecution service is governed by two principles, which significantly mark the role of the service in all criminal procedures, both concerning criminal prosecution (described in the chapters above) and at the stage of hearing of evidence before the court. These two principles are the principle of legality and the principle of impartiality.
The principle of legality means that the prosecution service will act in accordance with the Constitution, the law and other regulations in force, putting the appropriate actions into practice where applicable, or objecting to those incorrectly put into practice to the extent and in the manner stipulated by law (Sect. 6 Prosecution Service Act).
And it is precisely the force of this principle of legality in our system that does not permit the prosecution service to decide to charge a suspect with a less serious offence than he should be charged with in view of the facts that are known. At the same time, this principle implies that crimes cannot be waived for reasons of lack of manpower should the prosecution service become overburdened. A solution to this problem has been the prosecution service's decision to uphold plea bargaining, specially in most recent years.
The principle of opportunity does not apply, except in the criminal procedure to demand criminal responsibility of juveniles. Legality is crucial in the role of the prosecutor in a criminal trial. It is true that there are certain manifestations of opportunity, but sporadically and unobtrusively.
This leads us to the role of the court in deciding on a penalty, that is, the question arises whether the court may disagree with the classification made by the prosecution service. In general the court may not disagree with the maximum limit by classifying the offence as a more serious offence and imposing a greater penalty. Nevertheless, in a criminal trial, Sect. 733 CCP permits the court, where it considers that the offence to be tried has obviously been wrongly classified, to apply an exceptional procedure that consists of offering the party the possibility of changing the classification, taking into account a certain circumstance that affects responsibility or even changing the criminal classification of the act. The Supreme Court has determined that in that case it is necessary that the party accepts the change, because without consent of the party the court may not modify or surpass what has been criminally classified by the complainant party. The possibility of reducing the charge is another matter altogether, that is, of course the court may convict the defendant for a lesser offence.
The reason for this limit is the need to conjugate the roles of the people involved in the proceedings so as to avoid violating the accusatory principle, which demands that someone other than the judge establish the limits of the criminal proceedings. These limits mark the boundary of judicial action. The penalty may thus be decreased but not increased.
In Spain the parties propose their own witnesses, although the principle of cross examination is perfectly integrated in the penal system. In all trials, and basically due to regulations that govern the hearing of evidence in different types of trial, cross examination is permitted. This practice is perhaps especially significant in trials by jury (Sect. 46.5OL 5/1995, Trials by Jury Act), where cross examination works like in the Anglo-Saxon system.
It must be noted that the order in which the different witnesses are questioned is determined by Sect. 701 CCP, so that the witnesses called by the prosecution service give evidence in the first place, followed by the other criminal plaintiffs and, finally, the witnesses proposed by the defendant. The witnesses are questioned in the order in which they were proposed by each party. The court may alter the order where applicable, at the request of one of the parties or ex officio where it considers it advisable to clear up the facts or to help discover the truth (Sect. 701 CCP in fine). The party that has called the witness must ask him the questions he thinks fit, although the other parties may ask whatever questions they wish that are relevant in relation to the answers (Sect. 708 CCP). The foreman may also, of his own accord or at the request of any of the jury members, ask the witnesses whatever questions he deems fit to get to the bottom of the facts about which they declare (Sect. 708, II CCP).
The prosecution service makes an opening speech, by virtue of Sect. 734 CCP. In this final intervention, the prosecutor sets out the facts that he considers proven during the trial, their legal classification, the participation of the defendants in them and the possible civil liability that may derive, where applicable, from the commission of the criminal act. In summary, this is the last opportunity to repeat the accusation, that is, it is an act that not only criticises the evidence heard in the trial and analyses and summarises the theses maintained, but also an act of accusation, that is to say, it once again delimits the classification of the act as a specific offence, as it was classified in writing in the provisional classification (Sect. 650 CPC), modified or considered conclusive in the oral proceedings (Sect. 732 CCP).
The court is conditioned to the classification regarding the maximum classification requested (it may not pass sentence for a crime of a different nature or a more serious one) by virtue of the accusatory principle. We must remember, nevertheless, that in Spain there can be a public accusation (the prosecution service) and private or the people’s accusation. In these cases, when there is another accusation, the court is conditioned in its decision by the maximum penalty requested by any of the accusatory parties that may have intervened, not only by the prosecution service.
