Fifth Amendment: Prosecutorial Discretion Not Absolute: Constitutional Limits on Decision Not to File Substantial Assistance Motions

1993 ◽  
Vol 83 (4) ◽  
pp. 744
Author(s):  
David Fisher
Keyword(s):  
Prosecutorial Discretion ◽  
Fifth Amendment

The Implementation of the Proprio Motu Authority of the Prosecutor in Africa

2017 ◽  
Author(s):  
Manisuli Ssenyonjo
Keyword(s):  
Prosecutorial Discretion ◽  
The Future ◽  
The Impact

The chapter argues that some of the criticism against the use of proprio motu powers is justified, particularly in respect of selectivity, given that other situations outside Africa were not investigated in equal manner. Equally, the evidence by which the Prosecutor initiated proprio motu prosecutions was generally weak and, despite some dissenting voices, it was never turned down by the ICC’s pre-trial chambers. This is particularly interesting if one considers that the situation in Kenya, at least, was politically charged. Although the chapter largely discusses the legal contours of the Prosecutor’s proprio motu powers and their application in the two African situations, it also assesses the impact of these prosecutions on local proceedings and the potential for suffocating the investigated nations’ relations with the ICC. To avoid similar conflicts in the future, the author argues that the politicization of prosecutorial discretion could be assessed by considering comparable situations in which the Prosecutor is not attempting to proceed.

Smartphones, contents of the mind, and the fifth amendment

2018 ◽  
Vol 61 (4) ◽  
pp. 28-31 ◽  
Author(s):  
Stephen B. Wicker
Keyword(s):  
Fifth Amendment ◽  
The Mind

Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

2021 ◽  
Vol 35 (2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South African ◽  
Prosecutorial Discretion ◽  
Public Power ◽  
The Public ◽  
Canadian Experience ◽  
Political Interference ◽  
Administration Of Justice ◽  
The Supreme Court ◽  
Judicial Scrutiny ◽  
National Director

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

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