Parallel prosecution implies similar structures and procedures in two legal agencies. For this very reason, parallel procession would not be possible for the US government and state government. It is important to note that the bulk of criminal cases are for minor offences and they are dealt with in the Local Court. There defendants may plead guilty or may opt for a defended hearing. In a case of serious (indictable) crime which is friable in a higher court, a state of the Local Court conducts an administrative hearing called a committal proceeding. The purpose is to inquire into the evidence available and to determine whether or not, on that evidence, it can be said that there is a reasonable prospect that a jury would convict — another test applied at this gateway in the proceedings. The state does not make any finding about guilt and the extent to which the evidence can be tested or rejected is limited. Again there are rules governing these procedures, designed to preserve the essential rights of the defendant but also in part to give some measure of protection to any victims. The state’s reasons for the finding are usually contained in a short judgment.
Like all judicial officers, states are not in a position to make comments outside the court about particular cases they hear. Court sittings are open to the public (with few very strict exceptions, and then mainly where children are involved) and judicial officers are required to explain their reasons for decisions in the course of the hearings. It is a completely open and accountable process, able to be observed and reported upon by anybody (Bugliosi, 2000). The state justification for action taken by all judicial officers is to be found in the records of the proceedings themselves. There is certainty, transparency and public confidence in the outcome, which could be weakened by unstructured and selective comment after the event. A state may commit for trial but the government may decide, in accordance with the Prosecution Policy and Guidelines, that there is no reasonable prospect of conviction (the converse of the test applied by the state — who looks for a reasonable prospect of conviction — also constituting another gateway) and discontinue the matter. Conversely, a state may discharge a defendant but the government may decide that an ex officio indictment (one laid although there has been no committal for trial) should nevertheless be laid in the higher court and a trial proceed. Disagreement between the state and the US government does not necessarily mean that one is ‘right’ and the other ‘wrong’ — it is simply the making of a different judgment upon the basis of the existing evidence at the time the decision is made. Committal proceedings are, nevertheless, an effective screening or filtering process and as such constitute a useful gateway along the criminal path. They require an objective judicial assessment to be made of the case brought by the authorities before a defendant is subjected to the risk and cost of a trial (Miller, 2007). Within the strict limits prescribed, the evidence produced by the Prosecution is tested before the state. The defendant may or may not give and/or call evidence at that stage. If the defendant does give evidence or calls a witness, they may be cross-examined by the prosecutor. In the vast majority of cases only the Prosecution evidence is presented and mostly it is done with documents. Throughout the trial the prosecution bears the burden of proving the case to the standard known as beyond reasonable doubt. Therefore at trial the prosecution, faced with a plea of not guilty, will have to call all witnesses able to give relevant evidence and the defense will be able to challenge that evidence by cross-examination and by its own evidence (Dekle, 2007).
In sum, the structure and functions of the US government and state government do not permit parallel prosecution to be introduced. The state’s task is to determine the facts from that evidence and, taking into account the directions of law given by the judge, to decide whether or not the facts proved have established all the elements of the offence beyond reasonable doubt.
References
Bugliosi, J. (2000). The Art of Prosecution: Trial Advocacy Fundamentals from Case Preparation Through Summation. Looseleaf Law Pubns Corp.
Dekle, G. L. (2007). Prosecution Principles: A Clinical Handbook (American Casebook Series). Thomson West; 1 edition.
Miller, M. (2007). Criminal Procedures: Prosecution & Adjudication 3e. Aspen Publishers, Inc.; 3 edition.