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Wednesday, August 25, 2010

Ind. Courts - More on: Is a county prosecutor a member of the executive or judicial branch?

Re my question Monday, "Is a county prosecutor a member of the executive or judicial branch?" several readers have sent in their thoughts.

  1. I believe that Foster v. Pearcy, 270 Ind. 533, 535, 387 N.E.2d 446, 448 (1979), sheds some light on the questions posed in your post.
    "In 1896, this Court considered a case wherein a prosecuting attorney, in contravention of the grand jury's decision not to indict one Griffith, had secretly altered the indictment to include Griffith's name. **448 Griffith subsequently was arrested but the charges were later dismissed. He then instituted an action against the prosecutor for libel and malicious prosecution. A unanimous Court stated:
    'The prosecuting attorney, therefore, is a judicial officer, but not in the sense of a judge of a court. The rule applicable to such an officer is thus stated by an eminent author: "Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said duties are performed. If corrupt, he may be impeached or indicted; but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done. No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it." Townsend Slander and Libel (3d ed.), section 227, pages 395-6.' Griffith v. Slinkard (1896), 146 Ind. 117, 121-2, 44 N.E. 1001, 1002."
  2. I would think that since the rules regarding prosecutorial powers and duties are listed under IC 33-39, which falls squarely under the "Courts and Court Officers" section, that would make them officers under the judicial branch. They may have some executive style powers under the judicial branch, but I would hazard to say that they are still judicial branch members.

  3. I believe that a county prosecutor is still a lawyer. As such, he serves as an officer of the Court. And as an officer of the Court, he is subject to disciplinary proceedings.
Thanks to all who responded! BTW, Art. 7 of the 1851 Indiana Constitution contained a prosecuting attorney section similar to that in the post-1970, rewritten version of Article 7.

Posted by Marcia Oddi on August 25, 2010 02:34 PM
Posted to Indiana Courts