Criminal Law Essay Examples & Outline
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The prosecutor is a member of the justice system charged with the responsibility of prosecution in his or her jurisdiction (Elliott & Quinn, 2000). Prosecutors are required to exercise sound judgment in their official capacities. This means that they have to consider the context of a case before deciding to prosecute it or not. A prosecutor’s duty goes beyond convicting the accused. He or she has to ensure that justice prevails. The decision process on the cases to take or not is informed by the traditional professional conduct, the law and ethical codes. Strict adherence to the aforementioned sources of direction on prosecutor conduct and advisory board recommendations guides the decision on the cases to prosecute. This paper will focus on conduct of officers of the court. More specifically, the paper will cover the expected conduct of the police, prosecutors and judges.
The first criteria for selecting a case to pursue is the based on whether there is conflict of interest or not in the execution of the duties (Molan, 2004). Any instance that would affect his partial approach to the case or give him undue information on a case is grounds for conflict of interest (Herring, 2007). In the event a prosecutor was involved in a process before being employed by the government as a private practitioner or in any other non-governmental capacity, he or she ought to be excused from the case unless there is an n explicit law that permits representation.
If a prosecutor is participating in a matter substantially, he should not negotiate with the attorney of the defendant or the defendant. In the event that there were previous negotiations between the prosecutor and either of the parties to defense, the prosecutor ought to avoid future pursue of the cases. In the event that a prosecutor has a stake in the outcome of a case politically, financially or socially, he or she should not take the case (Elliott & Quinn, 2000). If the defendant is represented by a relative of the prosecutor, there will be conflict of interest and the impartiality of the prosecutor will be questionable (Jefferson, 2007). The prosecutor should not take up a case where the defendant is represented by a lawyer with whom he or she has substantial personal or financial relationship since in so doing he or she will be having conflict of interests (Emanuel, 2010).
Illegally obtained evidence is any evidence that is obtained through gross violations of the human rights as posited by the European Convention of Human rights (Molan, 2004). Illegality can be assessed according to the means that the investigating authorities use to obtain the evidence. Illegality of the evidence could arise from the violation of the privacy of the defendant such as forced entry into the defendant’s premises or unauthorized body search in contradiction of the 8 ECHR. Illegality could also arise from the violation of 3 ECHR through torture, depredatory treatment or punishment (Herring, 2007). Any evidence obtained through the aforementioned means is illegal. The prosecution has the burden of proof that the defendant is guilty of the crimes. In some cases, the prosecution resorts to illegal ways of obtaining evidence to support their arguments. The prosecution often resorts to illegal evidence collection measures whenever the conventional evidence collection measures are unfruitful. The judge has to decide on the admissibility of the evidence.
The judge has to consider the motive behind the illegal evidence collection whenever he or she decides to accept the evidence or not. Majority of the courts adopt an inclusionary approach whereby they put the interests of the victim before the legality question. Inclusionary approach to illegal evidence also ensures that the victims have had a fair trial. In some cases, the utilitarian approach is applied (Jefferson, 2007). The end is paramount and the means of reaching the end are less significant as long as the illegal means or approaches were adopted in the interest of justice for the victims (Emanuel, 2010). The admission of the evidence is decided upon according to the motives of the illegal evidence collection action.
The judge has to look at the motive of the investigation authority when searching for the evidence. In inclusionary decision regarding illegally collected evidence, the interest of the victim prevails above the right of the accused to privacy. However, inclusionary approach is rarely used in the criminal law in the United States. The law of the United States of America is hinged on the promotion of constitutionalism (Elliott & Quinn, 2000). Most of the illegally obtained evidence is therefore excluded from the court proceedings even if it leads to the conviction of the accused. However, real evidence obtained covertly is permitted in the trial.
Police officer handles arguably one of the toughest jobs in the country. They are often under pressure to perform while the bear all the risks of nonperformance (Emanuel, 2010). Their decision often border on life and death (Molan, 2004). There are higher standard of professional conduct on the law enforcement officers than any other profession. However, the police officers are entitled to due process just like other people. All considerations ought to be made before deciding a case involving the law enforcement.
Elliott, C., & Quinn, F. (2000). Criminal law. Harlow: Longman.
Emanuel, S. (2010). Criminal law. New York, NY: Aspen Publishers.
Herring, J. (2007). Criminal law. Basingstoke [England]: Palgrave Macmillan.
Jefferson, M. (2007). Criminal law. Harlow: Pearson Longman.
Molan, M. (2004). Criminal law. London: Old Bailey.