Lawfare or Justice? Understanding American Prosecution Part 1 — Where Did America’s System of Prosecution Come From?
This is the first installment in a six-part series about the institutions that shape prosecutorial decisions within the American justice system. Read the introduction and view other posts here.
Modern Americans are accustomed to a criminal justice system in which the government investigates crimes and brings charges through a public prosecutor to pursue a conviction while a defendant fights for their freedom. This is so firmly ingrained in American minds that it can seem like the foundation of criminal justice everywhere. However, it is relatively new and quite different from historical systems of criminal prosecution as well as many operating around the world today.
English common law traditionally relied on private citizens and police to bring criminal cases, while other countries developed systems built more around collective inquiry than opposing sides. So why did America make prosecution a government responsibility and criminal justice an adversarial contest?
Before the Public Prosecutor
The American prosecutor developed gradually from a mixture of English practices, Dutch influence, colonial necessity, distrust of centralized power, and 19th-century democratic reform. This evolution eventually gave extraordinary authority to a public official expected to pursue justice rather than private interests.
For much of English history, prosecuting a crime was not a regular government function. In fact, this responsibility was largely left to victims and the local community. With members drawn from the neighborhood, medieval juries were expected to investigate crimes, gather testimony, and come to court already familiar with the facts.
As juries moved away from active investigation toward passive decision-making, the victim or another “aggrieved citizen” assumed responsibility for presenting the case. This shift helped shape the adversarial system America inherited from English common law. Instead of relying on jurors to investigate what happened, the system increasingly relied on opposing sides to develop and contest the evidence before them. The person bringing the case was usually not a lawyer or government official and often served as both witness and prosecutor. While inexpensive and reliant on local knowledge, the system remained unreliable. A victim might be dead, intimidated, unwilling to proceed, or unable to present the case effectively.
The American colonies inherited England’s tradition of private prosecution but adapted it differently across places and periods. The result was a patchwork in which private citizens, attorneys, magistrates, grand juries, and local prosecuting officers shared responsibility for a criminal case. Where public lawyers existed, they generally handled murder, sedition, counterfeiting, tax offenses, and other crimes against the government, while victims prosecuted many ordinary crimes.
During the 18th century, the colonial population grew from about 250,000 to nearly two million, leading to more cities and more crime. These conditions in America gradually expanded the government’s role in prosecution. Public prosecutors began replacing private accusers, but the basic adversarial structure remained intact. Judges and juries continued to serve as independent arbiters.
As prosecution became a professional government function, the imbalance between the state and the accused became more pronounced. The expanding role of defense counsel—and later, the U.S. Constitution—reinforced this developing structure. The Sixth Amendment guaranteed the accused a right to counsel, confrontation, compulsory process, notice of the charges, and trial before an impartial jury. These protections helped establish the adversarial system in which the government has the burden to prove its case before an independent decision-maker while the accused receives meaningful tools to challenge it.
The Rise of the Elected Prosecutor
Concerns about concentrated government power over both accusation and judgment further entrenched the adversarial nature of the system. The result was a dispersing of authority in which prosecutors brought the case, juries decided guilt, judges provided oversight, and defendants received constitutional protections to challenge the government’s evidence. This helped ensure the system did not rely solely on the government’s own assessment of the facts, but that those facts could withstand independent scrutiny. However, most American criminal cases are resolved through negotiated pleas rather than the courtroom contest that theoretically defines the adversarial model.
After the United States gained independence, most state constitutions made prosecutors appointed officials selected by governors, legislatures, or judges and serving as officers of the courts. The most distinctive feature of American prosecution emerged during the 19th century, when states began allowing voters to elect local prosecutors. Mississippi became the first state to do this in 1832, followed by Ohio in 1833. The practice spread as popular democracy expanded during the Jacksonian era. By 1860, nearly three-quarters of the states elected their prosecutors.
Supporters believed elections would reduce patronage, limit centralized political control, and make prosecutors more responsive to local concerns. At the same time, prosecutors were gaining greater control over charging decisions, dismissals, and enforcement priorities. Elections therefore created two competing forms of accountability. Prosecutors gained independence from the officials who had once appointed them, but they became directly exposed to the will of the people: They had to campaign, defend their records, and persuade voters to keep them in office. As a result, newspapers soon identified candidates by political party and accused some prosecutors of favoring political allies. Thus, a system intended to reduce patronage quickly became tied to partisan politics.
While appointment can reduce campaign pressures, it does not guarantee neutrality. Prosecutors who depend on executive officials for appointment or continued service may face incentives to align with those officials’ priorities, particularly in politically sensitive cases. Elections can give prosecutors greater independence from other branches and provide voters with a way to respond to perceived abuses. Neither model removes politics from prosecution, making institutional safeguards and professional norms critical to maintaining impartial enforcement.
As prosecutors became entrusted with representing “the People” and pursuing justice, they also increasingly operated within an adversarial system that cast them as advocates responsible for defeating the opposing side’s case. As the U.S. Supreme Court explained in Berger v. United States (1935), the prosecutor represents a government whose interest is in seeing that justice is done. Therefore, a prosecutor’s duty is not simply to win. Professional standards likewise continue to require fair judgment when deciding whether to pursue or decline charges.
By 1974, 97 percent of chief local prosecutors were elected—a number that has remained largely unchanged. Likewise, 86 percent of state attorneys general are elected today. In turn, these officials appoint or hire the prosecutors who serve under them. The federal government, which followed the states in creating a public prosecution system, continues to appoint the prosecutors who lead federal prosecution offices. The United States is unusual in its widespread election of local prosecutors, who exercise substantial independent authority while remaining accountable to voters and public opinion.
Comparing Public and Private Prosecution Models
Although public prosecution changed who controls the decision to use the government’s power to punish, private prosecution did have some practical advantages. Victims and local citizens often knew the facts and circumstances surrounding an offense better than distant government officials did. Allowing them to initiate cases also provided protection when government officials were unwilling or unable to act. Of course, the trade-offs were substantial: A criminal prosecution could come down to a victim’s resources, persistence, or personal interests.
Public prosecution addresses many of those problems. Professional prosecutors can often better evaluate evidence and apply legal standards. They do not place the burden of prosecution on an individual or community that might not have the support, finances, or time to move criminal charges forward. Public prosecution also places responsibility for exercising the government’s coercive power with an official beholden to constitutional, ethical, and political constraints.
However, concentrating charging authority in government officials also carries risk. Public prosecutors hold an enormous amount of discretion, and they are not legally bound to follow the wishes of a victim or community.
Some remnants of the older system nevertheless remain. Pennsylvania permits a citizen to submit a criminal complaint requesting that charges be filed. While the district attorney generally must approve it, the complainant may petition a court to review a rejection. New Jersey also permits private citizens to initiate criminal complaints, subject to prosecutorial review and a judicial determination of probable cause. Neither state allows citizens to prosecute the entire case.
Adversarial System of Justice
From its colonial beginnings, the American criminal justice system largely inherited England’s common-law adversarial tradition rather than the inquisitorial approach that developed in much of continental Europe. The adversarial model asks opposing parties to develop competing cases for a neutral decision-maker, while the inquisitorial model places greater responsibility on public officials and the court to develop a shared factual record.
For example, the American adversarial system places the burden on the prosecution to prove its case against a defendant who is presumed innocent. Prosecutors develop and present the government’s evidence, while defense counsel challenges that evidence and protects the rights of the accused. The adversarial model assumes that a more reliable account will emerge from the contest between opposing sides, with judges resolving legal questions and enforcing procedural rules rather than independently investigating the alleged crime.
By contrast, an inquisitorial system generally assigns public officials a more affirmative responsibility for developing the factual record, including evidence that favors the accused. Police and prosecutors ordinarily conduct the investigation, while judges exercise great authority to examine witnesses, introduce evidence, request additional evidence, and assess the investigative file. The Federal Judicial Center describes inquisitorial systems as using “criminal procedure to facilitate a search for truth,” with the court reviewing all relevant evidence. Prosecutors and defense attorneys play a less dominant role in presenting and testing evidence in court, and traditional American-style direct and cross-examination may be limited or absent.
The two systems also differ in how prosecutors handle evidence and measure successful outcomes. Prosecutors in the American adversarial system must disclose certain exculpatory and impeachment evidence, but the timing of those disclosures and the scope of broader discovery depend on federal or state law and may not give the defense access to the prosecution’s full file. In an inquisitorial system, prosecutors and judicial officials are responsible for developing a complete and factual record that includes evidence both supporting and undermining guilt, making full access to the investigative record more central to the process.
The systems can also create different institutional incentives. American prosecutors operate within a structure where outcomes like convictions, pleas, dismissals, and case dispositions are readily measured, while traditional inquisitorial systems rely less heavily on plea bargaining and place greater emphasis on the completeness and accuracy of the investigation itself.
Many systems are hybrid in practice but may lean more heavily toward one model or the other.
Lessons for the Future
Prosecutors need enough independence to exercise judgment rather than merely carry out the wishes of politicians, victims, or the public. Yet the more independent they become, the more important it is that other institutions can check how they use that authority. Elections, courts, juries, defense counsel, ethical rules, and disclosure requirements all attempt to strike that balance in different ways.
Public prosecution certainly solved problems created by private enforcement, but it also concentrated enormous charging authority in government officials. Elections created a measure of independence from other branches of government, while the adversarial system imposed procedural limits intended to test the prosecutor’s case rather than simply accept it.
For all their differences, each system aims to achieve many of the same ends—from determining the truth and pursuing justice to preventing government abuse, remaining accountable to the public, and applying the law fairly. The question is whether the institutions built serve those goals as well as they could. Victims may deserve a more meaningful voice without controlling a prosecution. Appointed prosecutors may be insulated from electoral pressure while remaining vulnerable to political influence from those who select or supervise them. And an adversarial system designed to protect the accused may still benefit from asking whether truth-finding should play a more deliberate role in how evidence is gathered, disclosed, and tested.
The American model does not need to be replaced; however, history suggests it should not be immune to scrutiny. When existing practices fall short, useful features from other approaches can strengthen accuracy, accountability, and fairness. The goal should be to improve truth-finding and prosecutorial neutrality without weakening the robust constitutional protections around the presumption of innocence and individual liberty that distinguish the American system.
Part 2 will examine who controls that authority and how it is divided among federal, state, and local officials.