THE ROLE OF THE PROSECUTOR

Britton Bath Osler

 On May 23, 1895, Britton Bath Osler, the greatest Canadian prosecutor of the 19th century rose to make his final argument in the most sensational murder case that had ever been tried in the courts of Toronto. Arrayed against him on the other side were two of the most distinguished defense attorneys of the age, and they were aided by a man who was arguably the greatest American prosecutor of the 19th century, Francis L. Wellman, who had recently gone into private practice in New York City. Defense counsel, having spoken for almost eight hours, had ended their argument with an impassioned plea to spare the defendants' lives and return them to their wives and aged mother.

In attempting to defang the powerful arguments of his opposition, Osler called upon the jury to be guided by facts, not emotion. He then gave a statement of the role of a prosecutor which should be etched in the heart of all prosecutors everywhere:

"My function is simply to aid you in getting at the truth, and is entirely different from that of the prisoners’ counsel. It is the duty of the Crown' counsel to press home the facts. It is not his duty to present facts with an apology for presenting them against the prisoners. He is to treat the prisoners fairly, rightly; conceal no evidence that comes to his knowledge. He has to aid you in coming to a just conclusion upon the facts, and if acquittal follows and he has done his duty that is all the community asks of him."

William Randall Slaughter, the State Attorney of the Third Judicial Circuit when I began practicing law, made a similar statement when he told me, "A prosecutor doesn't win a case by getting a guilty verdict. A prosecutor wins a case by getting past a judgment of acquittal and getting a jury verdict. Whatever the jury says, the prosecutor has done his job." His language was a little more colorful than what I have reported, but I try to keep things on a PG level.

My next project, if I live long enough to complete it, will be a chronicle of this long-forgotten episode in Canadian legal history. It is, for me at least, a fascinating look at a titanic legal struggle in a court system that is somewhat unfamiliar to modern Americans.