That’s the topic of my new article at Huffington Post. Here’s an excerpt:
Currently, the accepted standard to bring a charge against anyone is probable cause, the same minimal standard needed to make an arrest. That standard remains the same from the time the charge is brought until the time the judge turns the case over to the jury to reach a verdict.
The American Bar Association’s Standards for Criminal Justice advises that a prosecutor shouldn’t prosecute a case in which he doubts the defendant’s guilt, but if he believes there’s enough evidence to establish probable cause, the ABA guidelines state that it’s ethical to pursue a conviction. There’s also no requirement that a prosecutor pursue evidence that may cast doubt on the suspect’s guilt. That means it is ethical for a prosecutor, according to the ABA, to ask a jury to pronounce a defendant guilty with a degree of certainty that the prosecutor may not possess himself . . .
A number of studies also show that when juries come into the courtroom, they believe prosecutors believe in the defendant’s guilt, or they wouldn’t be bringing charges, says Gershman.
“Juries also want to believe eyewitness testimony and forensics, even when there’s good reason for them to be skeptical. And then you have the problem of overworked or incompetent defense attorneys. The belief that we can throw all sorts of charges into this, and the system will sort all of this out so that only the guilty will get convicted just isn’t plausible. The prosecutor has to be a gatekeeper.”
“Gershman” is Pace University law professor and former prosecutor Bennett Gershman, who has written a number of law review articles on the topic.