Research Handbooks in Comparative Law series
Edited by Jacqueline E. Ross and Stephen C. Thaman
Chapter 4: Mechanisms for screening prosecutorial charging decisions in the United States and Taiwan
No one would deny the importance or scope of prosecutorial charging authority in the modern world, regardless of whether the prosecutor is operating in an adversarial or a continental criminal justice system. Along with law enforcement, prosecutors are the gatekeepers of the criminal system, deciding whether a person should be criminally charged, diverted, left to non-criminal sanctions, or ignored. Once a person is committed to the criminal process, the prosecutor has enormous discretion to decide what charge to set, and whether to offer a deal in return for a guilty plea. And in many cases, a prosecutor has the ability to influence the sentence that follows a conviction, either directly through bargaining or through a recommendation to the court.All observers agree that the prosecutorial power is vast (Allen et al., 2011; Davis, 1978), and in the United States there is theoretical agreement that vast power creates a large potential for abuse (Davis, 2001),1 but little agreement on the amount of actual abuse. Likewise, prosecutors in Taiwan have been criticized by scholars, lawyers, and judges for bringing criminal charges where there is insufficient evidence to indict, or where there is an ill or unjustified motivation or influence behind the charge (Wang, 2010).2If the prosecutor employs her authority too aggressively, the result can be unfounded or overzealous charging – accusations that are not supported by sufficient evidence to convict.
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