The decision to prosecute is
generally made by the prosecution agency or office. This is usually a separate
institution from the investigative agency. The separation is part of the
checks-and-balances protecting citizens against arbitrary law enforcement action.
Enforcement of election
integrity requires that the decision to prosecute be made objectively on the
basis of a careful review of the case, the weight of evidence and the
justification for prosecution.
Objective
Review
In deciding whether to
initiate proceedings, prosecutors usually undertake a thorough and objective
review of the case. The review may consider the following questions:
- Which laws were broken?
- Are the allegations
supported by facts, and are there credible, reliable witnesses willing to
testify in court?
- Was the intent criminal
in nature?
- What are the prospects of
obtaining a conviction?
In some systems, prosecutors
are elected officials. This can mean that they are sensitive to public opinion
and the political implications of particular cases, especially election fraud
cases that involve politicians. Although public opinion may sway an elected prosecutor’s
judgment, it may also make the conclusions of the prosecutor more accountable
than the views of police or investigators, who are ordinary public servants. If
voters do not like a prosecutor’s style or results, they can vote him or her
out of office at the next election.
Despite the need to satisfy
public opinion, prosecutors should strive to be impartial and enforce the law
fairly and uniformly. Their review of a complaint and the evidence is supposed
to result in an objective assessment of whether prosecution is warranted. In
the case of unfair or unwarranted prosecution, recourse is available through
the mechanisms provided in the monitoring of enforcement process or through the
appeals process.
Public
Interest Factors
Some systems use the criterion
of “public interest” in deciding whether a case should be prosecuted. This may
be a subjective decision influenced by a country’s social and political
context.
For example, Elections Canada decides to prosecute taking into
account factors such as the seriousness of the offence, mitigating or
aggravating circumstances, the suspect’s degree of responsibility, effective
alternatives to prosecution, a prosecution’s possible effect on public order or
public confidence in the integrity of the law, the need for deterrence, the
available resources, the time limit for initiating a prosecution, the sections
of legislation that may be challenged, and the appropriateness of applying the
same rules uniformly across the country.[1]
In the United States, prosecutors should keep in mind that
society is willing to tolerate certain behaviour in election campaigns that it
does not accept in commercial, personal or government dealings. Thus, as a
general rule, the crime of “voter fraud” covers only organized efforts to
subvert the election process itself —that is, voter registration, the casting
of ballots, vote counting and the certification of election results. This
definition excludes all activities connected with political campaigning unless
those activities are illegal under a specific law (e.g. stealing opponents’
campaign property, breaking into opponents’ offices or violating campaign
financing laws). Criminal proceedings are rarely undertaken in response to what
candidates do or say during a campaign.[2]
Prosecutors must therefore
consider whether administrative action or another approach might be preferable
to prosecution.
National
or Local Prosecution
Within the judicial system,
case jurisdiction is determined primarily by which laws have been broken. In a
federal system, where there are national, state and local laws, an
election-related offence could involve a violation of both national and state
law. Integrity issues may be involved in the decision about which court should
handle the case. Will a politically sensitive case be treated more objectively
at the national or local level? Will local prosecutors want to be involved in a
politically sensitive case that could have major repercussions?
Since voter fraud matters are
always politically sensitive, local prosecutors (who are usually themselves
elected) may hesitate to deal with them.[3] These
issues need to be taken into consideration when determining which agency will
prosecute the case and which is best placed to ensure that the proceedings are
conducted with integrity.
[1] Commissioner of Canada Elections, Investigators'
Manual, 2004
[2] Donsanto, Craig, “The Federal Crime of Election
Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral
Systems, IFES, op. cit.
[3] Donsanto,
“The Federal Crime of Election Fraud,” supra, p. 1
