The Role of the Prosecutor

FAQs

What we do

There are 120 elected Commonwealth’s Attorney’s across the state whose purpose is to seek the truth and pursue justice under the law in criminal matters within their jurisdiction. Commonwealth’s Attorney is the title given to elected prosecutors in Virginia. In some states elected prosecutors are referred to as District Attorneys, Prosecuting Attorneys, Solicitors, State’s Attorney, and Attorneys Generals, among others.

Under the law, Commonwealth’s Attorneys have many responsibilities in addition to seeking the truth and pursuing justice. Commonwealth’s Attorneys work on behalf of the people of the Commonwealth of Virginia. Under the law, they must protect the constitutional and legal rights of both those accused of committing crimes as well as victims of crime.

Why we do it

If you ask a prosecutor in Virginia why they do what they do, most would agree that they have a desire to serve their community, pursue social justice and to do the right thing. They understand both the responsibility and the privilege of serving as a prosecutor. If prosecutors see an injustice, a violation of procedural law, or a violation of someone’s rights, they must take action and do what’s right to rectify the situation. That can mean charging someone for a crime, dropping a case or reducing the charges in a case, for example. Pleasing everyone is an impossible task, so they are charged with doing the right thing, even when that’s an unpopular thing do.

The prosecutor’s role is to pursue justice

Commonwealth’s Attorneys work with law enforcement agencies to investigate and hold people accountable for violating Virginia law. Law enforcement officers are the first point of contact when determining if someone has violated Virginia law. Police officers routinely make the charging decisions that are then reviewed by a magistrate. A magistrate is a neutral and detached representative of the Virginia Supreme Court who reviews an officer’s evidence to determine if probable cause exists to proceed with a criminal prosecution. Then the case is turned over to a prosecutor for review. If a prosecutor also believes there is sufficient evidence to move forward, they prosecute these cases within the strict bounds of the law, the Virginia Constitution, the US Constitution and their professional ethics rules.

After a Commonwealth’s Attorney gets a case, they have the burden of continuing the investigation, introducing evidence on behalf of the state and proving a defendant’s guilt beyond a reasonable doubt. Defendants have no obligation to prove their innocence in a court of law. That burden solely rests with the Commonwealth of Virginia through the efforts of the prosecutor.

Commonwealth’s Attorneys are public servants. They are required to work within the United States Constitution, the Virginia Constitution, the laws of the Commonwealth of Virginia and they are guided by Supreme Court ethical rules.

Justice for victims – protecting their rights

Prosecutors are advocates for crime victims and those without a voice. Crime victims in Virginia have protections under the Virginia Constitution, and prosecutors play an important role in protecting victims’ rights and ensuring that victims remain at the center of the criminal justice system.

The rights of criminal defendants are protected by the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution.

THE FOURTH AMENDMENT provides protection against unreasonable searches and seizures by law enforcement. Virginia Commonwealth’s Attorneys protect this right by reviewing all cases that are brought to them by law enforcement to ensure that the police did not exceed their authority and conduct an illegal search.

THE FIFTH AMENDMENT gives defendants the right to remain silent. This right is rooted in the American legal process wherein the burden of proof lies with the prosecutor and the defendant is presumed innocent until found guilty in a court of law. Commonwealth’s Attorneys protect this right by looking closely at every case for any evidence of a forced statement made by a defendant who had previously invoked his or her right to remain silent.

THE SIXTH AMENDMENT gives defendants the right to a speedy, public and fair jury trial, the right to be represented by an effective attorney and the right to cross-examine witnesses against them. While prosecutors do not control the judge or the defense attorney, they do everything in their power to protect the defendants’ right to a fair trial. This includes providing any and all information regarding a defendant’s potential innocence to the defense attorney in a timely fashion. Prosecutors are also very careful in their statements to the public about any prosecution so as to further protect the defendant’s right to a fair trial and an impartial jury.

Justice for defendants – protecting their rights

Defendants have extensive rights in our legal system. These rights stem directly from the Constitution of the United States, as well as the Constitution of Virginia. It is the job of Commonwealth’s Attorney to do everything in his or her power to protect the rights of anyone who is charged in a criminal case.

Justice for the community – public safety

While many state and local elected officials in Virginia work hard to make their communities safer, Commonwealth’s Attorneys have a legal and ethical duty to keep the public safe. In the most serious criminal cases, prosecutors often recommend prison sentences to separate dangerous people from the public so they can’t hurt others. In other cases, prosecutors recommend counseling, restitution, diversion or other alternative solutions to seek justice and work to provide access to services people need to stay out of the criminal justice system.

What is the difference between a prosecutor and a defense attorney?

The role of a prosecutor is very different from the role of a defense attorney. While they both must work within the law and ethical rules, the job of a defense attorney is to zealously represent her client regardless of the person’s guilt.

Unlike defense attorneys, prosecutors are responsible for protecting the rights of both victims and those accused of crimes. Prosecutors are charged with ensuring the system is both fair and accountable for everyone.

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FREQUENTLY ASKED QUESTIONS

1. How and why are prosecutors given so much power?

ANSWER: The functions and authority of Commonwealth’s Attorneys are outlined in Virginia law.

§ 15.2-1627. Duties of attorneys for the Commonwealth’s and their assistants.

A. No attorney for the Commonwealth’s, or assistant attorney for the Commonwealth’s, shall be required to carry out any duties as a part of his office in civil matters of advising the governing body and all boards, departments, agencies, officials and employees of his county or city; of drafting or preparing county or city ordinances; of defending or bringing actions in which the county or city, or any of its boards, departments or agencies, or officials and employees thereof, shall be a party; or in any other manner of advising or representing the county or city, its boards, departments, agencies, officials and employees, except in matters involving the enforcement of the criminal law within the county or city.

B. The attorney for the Commonwealth’s and assistant attorney for the Commonwealth’s shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of § 18.2-268.3, 29.1-738.2, or 46.2-341.26:3 (DUI Refusal Laws).

2. Do prosecutors make the law?

ANSWER: Prosecutors do not decide what constitutes a crime; the Virginia General Assembly does.

3. What checks and balances are there to make sure prosecutors are behaving ethically?

ANSWER: The truth: Commonwealth’s Attorneys are MORE accountable than any other actor in the criminal justice system. Virtually every official action that prosecutors take is done in open court so that any member of the public or the media can see.

Commonwealth’s Attorneys must be elected by the citizens every four years.

They are continuously scrutinized by defense attorneys, the media, crime victims, the police and watch-dog organizations.

They are monitored by local judges, Virginia appellate courts and the United States Supreme Court.

Commonwealth’s Attorneys are bound by stringent ethical rules set forth by the Virginia State Bar – over and above the ethical rules that apply to all attorneys. Failure to comply with these rules can result in loss of license and removal from office.

Prosecutors are required to abide by state and local laws, the Virginia Constitution, the US Constitution, various laws and rules regarding discovery and disclosure.

Commonwealth’s Attorneys routinely go beyond the legal “open records” requirements when the interest of the public demands additional information be provided.

4. Is the work prosecutors do open to the public?

ANSWER: The vast majority of the work prosecutors do is public. Courtrooms are public, most court records are public if they are not sealed by a judge, and the media cover our work extensively. However, there are some limited times when a prosecutor cannot speak publicly about a case. This is either to protect the integrity of an investigation or to protect the defendant’s right to a fair trial. The public can utilize Virginia’s open records laws to request documents and information from the court. You may also visit your local prosecutor in person! They would love to see you and answer your questions.

5. Why do prosecutors put people behind bars when it’s clear they have mental health issues, they are drug abusers or they are homeless?

ANSWER: Our prosecutors care deeply about the welfare of all Virginians, especially those in need of assistance. People with mental health issues, drug additions or who are homeless are accountable for their behavior under the law just like the rest of us. Many Commonwealth’s Attorneys participate in and dedicate staff to alternative sentencing programs. Some examples of these programs are drug court, mental health court, DUI court, community and veterans court. These programs strive to keep people out of prison by providing solutions and resources to people who need the help the most. Many of these programs are not funded by the state. Some elected prosecutors seek outside grant funding like the Commonwealth Attorney in Virginia Beach did….

6. Do prosecutors sentence people?

ANSWER: Prosecutors do not sentence people, judges and juries do. Prosecutors do make sentencing recommendations to the judge. Our sentencing recommendations are based on the type of crime, the criminal history of the defendant, historical sentences for like crimes, the law and the interests of justice. Race, gender, sexual orientation, occupation or social status do not play any role in sentencing recommendations made by prosecutors.

Judges are free to disregard the recommendations made by prosecutors, and they do that to varying degrees throughout each jurisdiction. The exceptions to that are the state minimum requirements our Commonwealth law makers have established that judges are required to follow.

7. Do prosecutors pursue charges against police officers if they abuse, hurt or kill a citizen?

ANSWER: Offenses involving law enforcement officers fall into the rare circumstance where the prosecutor is more directly involved with the charging decision. In these cases, Virginia’s Commonwealth’s Attorneys take very seriously their responsibility to pursue indictments where appropriate without regard to the offender’s occupation. We also take very seriously our accountability to see that a charging decision is properly exercised. In some instances, circumstances may warrant the services of a special prosecutor from outside the Commonwealth’s Attorney's office, however, many cases are appropriately handled by the local Commonwealth’s Attorney who will conduct their investigation without fear or favor.

8. I know most prosecutors do a good job, but what if a prosecutor in Virginia commits misconduct? Are there any consequences?

ANSWER: Yes. Prosecutors are heavily scrutinized by courts, the media, the Virginia State Bar and defense attorneys. The penalties prosecutors would pay for misconduct rage from dismissal of their case, loss of their law license and even imprisonment.

9. What is the position of Commonwealth’s Attorneys on police body cameras?

ANSWER: Virginia’s prosecutors believe that body worn cameras (BWCs) are a good thing. However, many areas in the state simply do not have the financial resources and manpower resources to effectively deploy body worn cameras. While Virginia law does not mandate body worn cameras, the Virginia Department of Criminal Justice Services published a Model Policy on Body Worn Cameras in 2015. (https://www.dcjs.virginia.gov/content/body-worn-camera-model-policy). Virginia’s Commonwealth’s Attorneys believe that any local jurisdiction seeking to implement BWC should do so in accordance with the Model Policy and in collaboration with other criminal justice stakeholders. In jurisdictions around the nation, implementation of BWC results dramatically increased the resources needed by police departments, courts and prosecutors to review, redact, manage and store the volume of digital evidence created by the BWCs.

10. Are Commonwealth’s Attorneys for or against Criminal Justice System reform efforts?

ANSWER: Virginia’s Commonwealth’s Attorneys have been leaders in criminal justice reform for decades. While each Commonwealth’s Attorney has a unique perspective, our prosecutors have been pioneers in using diversion and alternative sentencing to seek justice, provide opportunities for rehabilitation and save finite prison resources for those who pose a serious danger to our citizens.

Virtually every jurisdiction in Virginia has at least one alternative court or diversion initiative, and some have as many as 10! And – all of these programs were initiated by the local Commonwealth’s Attorney. With more and more of these initiatives emerging every year, it’s clear that Virginia’s Commonwealth’s Attorneys are absolutely committed to making our justice system modern, resource efficient, effective and fair for all.

11. How is the death penalty used in Virginia?

ANSWER: Under Virginia law, the death penalty is reserved for only the worst of the worst murder cases. Virginia prosecutors take their role in determining when to seek the death penalty very seriously, and only do so when the facts warrant it after an exhaustive investigation and communication with the victim’s family.

12. Why are so many children being charged as adults in criminal court?

ANSWER: In Virginia, prosecution as an adult is reserved for those juveniles who are charged with the most serious types of offenses. Sadly, being under age 18 does not prevent someone from seriously harming or heinously killing another person. Virginia prosecutors take their role in determining when to prosecute a juvenile as an adult very seriously. We only do so when the facts warrant it after an exhaustive investigation of not only the offense, but also the rehabilitative options available for the particular juvenile involved.

13. Have Virginia Commonwealth’s Attorneys addressed the allegations of racial discrimination in sentencing?

ANSWER: Virginia’s prosecutors are sensitive to and deeply concerned about racial disparities in our criminal justice system. However, we also know that the root causes of these disparities are complicated and systemic, many dating back over hundreds of years. Virginia’s prosecutors are firmly committed to achieving racial equity. Even though the solutions to systemic racism lie far beyond the powers of prosecutors, we stand ready to partner with any stakeholder to work toward identifying and eliminating race inequity in Virginia’s criminal justice system.

14. Why do Criminal Justice Reform efforts focus so much on defendants? Are victims getting overlooked in these efforts?

ANSWER: We should never lose sight of the true victims – those who didn’t choose to have their lives impacted by criminal actions of others. While defendants are entitled to their constitutionally protected rights, they should also be held accountable for the actions that they chose to take.

15. Virginia law on marijuana is so extreme, what are Commonwealth’s Attorneys doing about this?

ANSWER: Virginia’s laws, including those pertaining to marijuana possessions are created by the legislature, not by prosecutors. Currently under Virginia law possession of marijuana carries a lighter sentence than most other misdemeanors, including underage possession of alcohol. While we are not all opposed to changing Virginia’s marijuana laws, we think such change should only be made after a full and frank public dialogue on all of the different forms and potencies of marijuana products available today, as well as the ramifications of marijuana use. VACA is eager to work with the legislature on exploring all of the impacts of increased legality of marijuana consumption.

16. Are Virginia prosecutors following the court rules for turning over documents to defense attorneys?

ANSWER: Virginia’s Commonwealth’s Attorneys have long recognized that Virginia’s court rules covering discovery are out of step with the rest of the nation and, as such, do not always support our goal of a fair and efficient criminal justice system. That is why most Commonwealth’s Attorney’s offices have historically engaged in discovery practices that are far broader than the rules require. Now, thanks to the leadership of Commonwealth’s Attorneys, Virginia’s criminal discovery rules are coming into conformity with what most Commonwealth’s Attorney’s offices have been doing for years. On July 1, 2020 new rules will take effect that will balance transparency and fairness with the need to protect victims and witnesses of crimes. Virginia’s Commonwealth’s Attorneys were proud to support these new rules and took an active role in drafting them. We are committed to making Virginia’s criminal justice system fair and safe for all citizens.