Request for Comment — consultation draft; not adopted

RFC-013 — Prosecution, Public Defense, and Inquisitorial Criminal Process

Status: Draft for consultation
Operative effect: None

Consultation Status

The Constitution is an unratified consultation draft. Nothing in this RFC has been enacted, adopted, or ratified.

This RFC addresses a criminal-process architecture gap identified by the justice-system interaction audit. The Constitution defines judicial adjudication and independent investigative fact-finding, and guarantees a Public Defense Institution, but does not define the State's prosecutorial function or the fact-finding structure necessary to make the existing verdict/JNOV language coherent.

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1. Issue

Article 10 presently provides:

an inquisitorial criminal process;
an independent Investigative Magistracy that seeks truth rather than serving a court;
a Judiciary responsible for judgment;
strong defense and due-process rights under Article 2;
a Public Defense Institution with coordinate standing and resources equal to “prosecutorial functions of the state”;
a Judgment Notwithstanding the Verdict mechanism after a conviction.

The Constitution does not identify:

who prosecutes;
who decides whether charges proceed;
whether prosecutors belong to the Executive or an independent institution;
how prosecutors interact with the neutral Magistracy;
whether prosecutors may direct investigation;
who returns the “verdict” referenced by Article 10;
whether any jury, lay panel, mixed panel, or other fact-finder exists.

The unresolved question is:

How should prosecution, defense, neutral investigation, fact-finding, and judicial judgment be institutionally separated in the Constitution's inquisitorial criminal system?

2. Why the Question Matters

The draft's strongest criminal-process principle is that investigation should seek truth rather than merely build a case for conviction.

That principle can be undermined if:

prosecutors control the Magistracy;
investigators become de facto prosecutors;
prosecutors can suppress exculpatory findings;
defense parity is defined against an institution that does not legally exist;
courts become investigators;
a verdict mechanism assumes a jury or fact-finder that is nowhere established.

The goal is not to reproduce an adversarial system by default.

The goal is to identify the institutional roles necessary for a workable inquisitorial system while preserving Article 2 rights.

3. Existing Constitutional Context

A. Investigative Magistracy

The Magistracy:

conducts active fact-finding;
gathers evidence;
examines witnesses;
pursues truth;
is independent of the Judiciary;
cannot be directed in investigative method by judges;
delivers its complete unaltered record to the Judiciary.

RFC-007 separately addresses how investigations begin.

B. Judiciary

The Judiciary:

interprets law;
adjudicates;
provides constitutional review;
issues warrants and remedies;
may request additional fact-finding without directing investigation.

C. Due process

Article 2 Section 17 guarantees:

presumption of innocence;
proof beyond reasonable doubt;
counsel;
State-funded counsel where necessary;
silence and protection against compelled self-incrimination;
adequate time and resources;
evidence challenge;
exculpatory disclosure;
fair and timely hearing;
warrants and review.

D. Public Defense

Article 10 establishes a Public Defense Institution with resources, staffing, and institutional support equivalent to prosecution.

But prosecution itself is not constitutionally defined.

E. JNOV

Article 10 permits a presiding judge or panel, after a verdict of conviction, to set aside that conviction where no reasonable interpretation of the established facts supports guilt beyond reasonable doubt.

No separate constitutional source of the verdict is identified.

4. What the Draft Does Not Yet Specify

The Constitution does not determine:

whether prosecution is an independent constitutional institution;
whether prosecution sits within the Executive;
whether prosecution is a professional service established by protected law;
whether Magistrates may prosecute cases they investigated;
who authorizes charges;
whether a prosecutor can decline a case supported by the Magistracy record;
whether a court can require prosecution;
whether a complainant can challenge non-prosecution;
whether prosecutors can request further investigation;
whether prosecutors can direct investigative methods;
how plea agreements or diversion operate;
who controls disclosure obligations;
who is the criminal fact-finder;
whether there is a jury;
whether judges determine facts and guilt directly;
whether mixed professional/lay panels exist;
what “verdict” means;
what the intended JNOV safeguard actually does;
whether acquittal can be appealed;
how appellate review is structured;
whether Public Defense is one of the coordinate justice institutions;
what “coordinate standing” means in Section 6;
how resource parity is measured.

5. Current Drafting Assumptions and Constraints

Any model should ordinarily preserve:

Investigation remains truth-seeking rather than prosecution-controlled evidence assembly.
Judges do not direct investigative method.
Prosecutorial advocacy does not bind judicial fact-finding.
The accused remains presumed innocent.
The State retains the burden of proof beyond reasonable doubt.
The accused has meaningful counsel and evidence-challenge rights.
Exculpatory information cannot be suppressed by prosecutors, investigators, or other State institutions.
Prosecution should not be able to manipulate Magistracy appointments, removal, assignments, or budgets.
The Magistracy's decision to investigate does not establish guilt or require prosecution.
The constitutional design should identify who may make the coercive public decision to prosecute.
Public Defense parity must have an identifiable institutional comparator.
RFC-007 remains limited to initiation of investigation and should not silently decide prosecution architecture.

6. Possible Prosecution Models

Approach A — Independent Prosecution Service

A constitutionally or organically independent prosecution service decides whether and how to prosecute after receiving the Magistracy record.

Potential advantages

separates Executive politics from charging;
separates investigation from advocacy;
gives Public Defense a clear comparator.

Potential concerns

creates another institution;
appointment and accountability design required;
risk of prosecutorial bureaucracy becoming unaccountable.

Approach B — Executive Prosecution Service

Prosecutors belong to the ministry responsible for Justice or another Executive office.

Potential advantages

democratic accountability;
familiar administrative structure;
no new constitutional institution.

Potential concerns

political influence over charging;
tension with investigations of senior Executive officials;
resource parity and independence concerns.

Strong statutory independence could mitigate some risks but may not eliminate them.

Approach C — Magistracy-Associated Prosecutorial Division

The Magistracy remains neutral in investigation, but a legally separate prosecution division receives completed records and litigates cases.

Potential advantages

close evidentiary integration;
fewer institutional handoffs.

Potential concerns

public may reasonably doubt whether investigation is truly neutral if the same institution also seeks convictions;
internal career incentives may influence fact-finding.

Approach D — Public Prosecutor Selected Through Judicial-Appointments-Type Process

A separate public prosecution institution could be professionally selected and cross-caucus confirmed.

Potential advantages

distributed legitimacy;
independence from single-branch control.

Potential concerns

politicized confirmations;
additional constitutional complexity.

7. Charging Decisions

Possible models include:

prosecutor decides whether legal and evidentiary standards justify charges;
magistrate recommends charges but cannot compel them;
prosecutor files charges subject to judicial sufficiency review;
serious non-prosecution decisions receive internal or limited judicial review;
victims receive reasons and a process to seek reconsideration.

A court should not ordinarily become prosecutor merely because it disagrees with declination.

At the same time, unexplained refusal to prosecute powerful officials could defeat equality before the law.

8. Prosecutorial Requests for Investigation

A prosecutor may identify missing evidence.

Possible rule:

prosecutor may request additional fact-finding;
Magistracy controls investigative method;
Magistracy may decline duplicative, unlawful, or unsupported requests with written reasons;
prosecutor may proceed or decline based on the lawful record;
no prosecutor may order a magistrate to generate a desired factual conclusion.

This could mirror the existing Judiciary/Magistracy relationship.

9. Public Defense Institutional Status

Possible models include:

A. Independent constitutional institution

Public Defense receives:

own leadership;
protected budget;
institutional independence;
parity with prosecution.

Approach B — Protected statutory institution

The Constitution guarantees independence and parity but leaves institutional form to protected law.

Approach C — Coordinate only relative to prosecution

“Coordinate standing” could mean equality of litigation status and resources rather than Article 20 coordinate-institution status.

The current text should eventually use terminology that makes the intended meaning explicit.

10. Resource Parity

“Equivalent resources” may include:

staffing ratios;
expert access;
investigators;
forensic testing;
translation;
technology;
travel;
case-management support;
training;
compensation;
access to records.

Exact dollar equality may be neither necessary nor sufficient.

The constitutional principle might instead require effective institutional parity sufficient to prevent materially inferior representation because the opposing public prosecution function has greater State resources.

Reviewers should consider whether quantitative rules belong below the Constitution.

11. Who Determines Facts and Guilt?

The inquisitorial model still requires a defined fact-finder.

Possible models include:

Approach A — Professional judges

The trial judge or judicial panel determines facts and law.

Implication for JNOV

The current JNOV mechanism is unnecessary or incorrectly named because the same body already decides whether guilt is proven.

The Constitution could instead require acquittal whenever the evidentiary threshold is not met and provide appellate review.

Approach B — Jury

A lay jury determines guilt; the judge controls law and may set aside an unsupported conviction.

Advantages

gives coherent meaning to JNOV;
public participation.

Concerns

the Constitution presently defines no jury system;
jury selection in a deeply divided society raises major design questions;
may shift the system toward adversarial trial practice.

Approach C — Mixed Judicial/Lay Panel

Professional judges and lay members jointly determine facts and guilt.

Advantages

combines public participation with professional adjudication.

Concerns

composition and voting rules become constitutionally significant;
complex.

Approach D — Separate Trial and Review Panels

One judicial panel determines guilt; another may set aside legally unsupported convictions.

Advantages

preserves professional inquisitorial model.

Concerns

essentially creates immediate appellate review;
JNOV terminology remains misleading.

12. The Intended Acquittal Safety Valve

The current text appears designed to guarantee that:

A conviction cannot stand where the established facts cannot reasonably satisfy proof beyond reasonable doubt.

That principle is coherent regardless of institutional model.

The unresolved issue is the mechanism.

Possible forms include:

mandatory acquittal by the trial court;
judicial power to set aside a jury conviction;
automatic review of conviction sufficiency;
appellate review as of right.

The RFC should focus on preserving the safeguard rather than preserving the label “Judgment Notwithstanding the Verdict.”

13. Acquittal and Appeal

Important questions include:

may prosecution appeal an acquittal;
if so, may an appellate court directly convict;
does double-jeopardy protection apply;
may prosecution appeal legal rulings only;
does every serious conviction receive appeal as of right;
does a victim have any review rights over non-prosecution without becoming a prosecutor.

These questions intersect with Article 10 §1(4)'s “automatic right of review.”

14. Pleas, Diversion, and Agreements

Even inquisitorial systems may use:

admissions;
negotiated dispositions;
diversion;
restorative processes;
cooperation agreements.

Possible constitutional safeguards include:

voluntariness;
counsel;
factual basis;
judicial review;
no coercive punishment for exercising trial rights;
transparency appropriate to the case.

Detailed procedure can remain below the Constitution.

15. Exculpatory Evidence

Article 2 already requires the State to disclose materially exculpatory information known to any State authority.

This means:

Magistracy records;
prosecution files;
police records;
expert evidence;
other State-held material

cannot be compartmentalized to evade disclosure.

No prosecution model should narrow that obligation.

16. Prosecutorial Independence and Accountability

If prosecution is independent, accountability may include:

published charging standards;
reasoned declination in serious public-interest cases;
conflict rules;
Inspector or professional discipline;
judicial review of unlawful discrimination or bad faith;
Assembly oversight of administration and budget without case direction;
Investigative Magistracy jurisdiction over misconduct.

If prosecution is executive, stronger anti-interference safeguards may be needed.

17. Prosecution of Executive Officials

Article 5 gives the Magistracy jurisdiction over Executive misconduct.

If prosecution belongs to the Executive, a conflict arises when senior Executive officials are subjects.

Possible safeguards include:

independent special prosecutor;
mandatory transfer;
independent prosecution service;
judicially appointed temporary prosecutor under defined conditions.

This interaction should be resolved expressly rather than relying on informal recusal.

18. Constitutional Level

Constitution

Likely subjects include:

institutional location or independence principle for prosecution;
separation of prosecution from neutral investigation;
independence and effective parity of Public Defense;
identification of criminal fact-finder at a high level;
proof-beyond-reasonable-doubt safeguard;
acquittal/sufficiency protection;
review as of right for serious convictions;
noninterference with Magistracy investigations.

Protected Organic Judicial Institutions Law

Possible subjects include:

prosecutor qualifications;
charging standards;
recusal;
case assignment;
plea/diversion procedure;
appellate procedure;
defense administration;
resource measurement;
disclosure administration;
trial mechanics;
panel composition where not constitutionally fixed.

19. Tradeoffs and Failure Modes

Reviewers should consider:

political prosecution;
unaccountable independent prosecutors;
investigators becoming conviction advocates;
prosecutors directing neutral fact-finding;
exculpatory evidence suppression;
defense structurally underfunded;
duplicate justice institutions;
victim interests disappearing;
courts becoming prosecutors;
unclear fact-finding responsibility;
unsupported convictions;
jury/community bias;
prosecutorial declination protecting powerful officials;
prosecution appeals undermining final acquittal;
excessive constitutional detail.

20. Questions for Reviewers

Which institution should exercise prosecution?
Should prosecution be constitutionally independent?
If prosecution remains Executive, what independence guarantees are necessary?
May prosecutors direct the Investigative Magistracy?
May they request additional investigation?
Who decides whether charges are filed?
What review should exist for serious declinations?
How should Executive-official prosecutions avoid conflicts?
Is Public Defense a constitutional institution in the Article 20 sense?
What should “coordinate standing” mean?
How should defense/prosecution resource parity be measured?
Who should determine criminal facts and guilt?
Should there be juries?
Would mixed panels be preferable?
If professional judges decide guilt, should the JNOV provision be removed or reframed?
What constitutional safeguard best ensures that unsupported convictions cannot stand?
What criminal appeals should be as of right?
May prosecution appeal acquittals?
How should plea, diversion, and cooperation agreements be regulated?
Which rules belong in the Constitution versus O-02?
Are important models or failure modes missing?
Do any current drafting assumptions themselves require reconsideration?

21. Status After Consultation

Current status: Open RFC issue.

No prosecution institution, fact-finder, jury system, defense-status revision, charging model, or JNOV replacement is adopted by this RFC.

Feedback may support an independent prosecution service, Executive prosecution with strong safeguards, another structure, professional judicial fact-finding, jury or mixed-panel participation, revision of the Public Defense language, or replacement of the current JNOV mechanism with a more coherent conviction-sufficiency safeguard.

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