The Unchecked Charging Power of Prosecutors

Saturday, April 14th, 2012

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.

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35 Responses to “The Unchecked Charging Power of Prosecutors”

  1. #1 |  Burgers Allday | 

    The best solution would to be to have that excerpt be a jury instruction which the judge cannot refuse the defense atty (and still expect any sort of guilt verdict to withstand appeal).

    This may not be as impractical of a plan as it appears at first blush. Traditionally (not recently, I mean at commonlaw), this would have been a natural approach for a court or a political jurisdictions judiciary to take.

  2. #2 |  Michael P ack | 

    Their are so many vague laws on the books,and thaks to the wars on dui and drugs,most people have,at some point ,broken the law,and many did no harm.It is very hadr to fight even smaller charges due to the huge cost involved.Prosecutors can force most people into a plea,one that sounds good at the time but follows them the rest of their life.

  3. #3 |  C. S. P. Schofield | 

    So the biggest association of Lawyers says that it is ethical to pursue a course of action that any honest layman would consider unethical.

    No surprise.

  4. #4 |  picachu | 

    Sad to say it but when I first began reading this blog several years ago I just assumed that most prosecutors were convinced that defendants were guilty or they wouldn’t have bothered to prosecute them.

    I also believed that probably 99% of defendants really were guilty. I didn’t really know anything about the legal system.

  5. #5 |  Yizmo Gizmo | 

    I propose about something along the lines of “loser pays.”
    You prosecute, you lose, it’s over. Pay the defendant’s legal bill. Find another line of work…

  6. #6 |  Longbow | 

    It seems these days, that a prosecutor’s only decisive requirement is, “Can I win this case and get a conviction…?” More convictions equal more feathers in the prosecutor’s cap.

    The question, “Is this person guilty of a crime truly worthy of imprisonment…?” or “Is this, objectively, the right thing to do?”, doesn’t seem to figure in.

    Mike Nifong of Durham NC comes to mind.

    Some States have now passed laws which mandate the police gather and compile evidence of self defense if such evidence exists. This would have helped Mr. Zimmerman in Florida.

  7. #7 |  Christ on a Cracker | 

    I’ve been thinking of a system where the defendant receives a voucher for legal expenses. Not “Jonnie Cochrane” level, but enough to mount a reasonable defense. None of this “If you can’t afford one…” nonesense. The amount would be based on the severity of the crime. Shoplifting=$2000, capital murder = $500,000.

    Each additional charge would bring out another voucher.

    Think of it as the procecutor’s quality control.

  8. #8 |  Matt I. | 


    People would never go to that. I’m sure that within a week of its implementation someone who doesn’t mind going to jail will find a way of embezzling the money via a ‘friend’ lawyer.

    Plus people would be up in arms about how it ‘incentivizes crime’, ‘coddles criminals’ and all that.

    And as much as I would love prosecutors to be the gatekeepers, I know that’s not going to happen. The best thing is to have an informed jury, and a judge who is willing to be an honest referee.

  9. #9 |  Burgers Allday | 

    @7: The real “root” solution is spending parity in criminal cases. A lot of us have been saying that for a long time.

    Actually spending parity in civil suits is probably a real good idea, too. Hard to enforce, but probably one of the few hard-to-enforce ideas that is worth enforcing (for justice reasons) notwithstanding the difficulty.

    It is obvious, to me anyway, that spending inequality (even relatively small inequality) perverts the court’s inquiries and eventual decisions. It is a big deal. Ppl don’t see this, not because they don’t understand the principle, but rather they are incredulous that so many generations of lawyers and judges could have gotten this basic precept of justice just so so so horribly wrong.

    Oh, also, I don’t think the Koch brothers would like enforced spending parity, especially in civil cases, but Mr. Balko bucks their wishes with such regularity that he may just come out with a paean to spending parity soon, or at least one can hope and just keep hurling the silly rhetoric.

  10. #10 |  Burgers Allday | 

    On a related note: enforce spending parity in public education (perhaps even at the national level) is also a good idea. It might have done more than Brown v. BOE* to bring about the degree of racial harmony we now enjoy in the US.


    * of course forced desegregation and enforce spending parity is not an either/or choice. Both remedies are good. As we now know, white people can restructure their lives to effective escape the liberty strictures of Brown. Enforced spending parity might not be so easy to white flight away from (especially if done at national level).

  11. #11 |  Marty | 

    it seems like ‘spending parity’ in education and legal issues would result in more federal bureaucracy. has there ever been an instance where that’s a good thing?

  12. #12 |  Marty | 

    vouchers would do a great deal to address white flight by ending education monopolies.

  13. #13 |  Burgers Allday | 

    We have a justice system, so we already have a vast justice beaurocracy.

    we already have public education so we already have a vast justice beaureaucracy.

    As far as whether spending parity would tend to increase or reduce aggreagate expenditures (gov’t and/or private sector):

    1. Increased aggregate spending on public education is not a bad thing.

    2. That said, my speculative guess is that national-level public education spending parity would serve to reduce, over the long run (but not neccessarily the short run) money spent on pub ed.

    3. Enforced spending parity in criminal cases would almost certainly drastically reduce government spending in this area. On this point, I don’t even think reasonable (and smart) ppl can disagree.

    4. As far as what spending parity would do in civil cases (where its NOT mostly govt $$$$$$ being expended): it would probably put lots and lots and lots of litigator-lawyers out of work. That makes me sad on a personal level (bcs I know and work closely with these type of people), but happier during the portions of my life I spend on the astral plane.

  14. #14 |  croaker | 

    @6 But for every Mike Nifong there are damn few David Prater.

    Shocked the hell out of me when I read that. h/t Simple Justice blog.

  15. #15 |  croaker | 

    Any why is a grand jury necessary in only 22 states? Seems to me the 5th amendment applies everywhere.

  16. #16 |  Mannie | 

    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 . . .

    And this is what lawyers refer to as “ethics.” [SPIT]

  17. #17 |  C. S. P. Schofield | 

    While I’m seeing a lot of good ideas here, what is needed is for lying swine like Nifong to be prosecuted and jailed. In cases where they trumped up evidence of a capitol crime they should be tried for conspiracy to commit murder. Make it necessary for their continued good health and careers to play it as honestly as they can. This “didn’t pass clear evidence of innocence to the defense, but gets promoted to the next vacancy on the Bench” nonsense must stop.

  18. #18 |  John P. | 

    People fail to realize the criminal “justice” system isn’t about finding justice… its all about quickly and efficiently putting your ass in jail and extracting as much fine money out of you as it possibly can.

    Its not only the unchecked powers our prosecutors have, hell even the grand jury system is now rigged in their favor… since they control the entire process…

    Its fucking nauseating to think we still call it justice…

  19. #19 |  C. S. P. Schofield | 

    John P.

    I seriously think you have underestimated the complexity of the situation. Certainly SOME forces in various level of government see the system that way. Others see it as a way to placate the masses for the inadequacy of the State. Still others actually care about Justice (and Radley has been delighted too highlight a few of them). Like any human enterprise, the “Justice System” is pulled in many directions by many impulses.

    No, it isn’t perfect. it is, in fact, far from it. But there really is precious little historical background – other than our own evolution – for a system of laws that makes much of an effort at all to respect the rights and property of the un-connected.

    Fight for it, dammit! If you shrug your shoulders and give up what little progress we have made will slip away, and we will get something devised by some self-appointed Ruler.

  20. #20 |  GT | 

    @Burgers Allday – ‘spending parity’ only gets you halfway there, even though it would be a HUGE boost here in Australia for the overwhelming bulk of criminal defendants: at the bottom of the pile, sit ‘crim’ defence barristers who work for Legal Aid and get $300 a DAY (from which all expenses must be deducted).

    With courts closed for most of every January, that means a journeyman defence barrister’s income tops out at $66k if he works every single day. Pay your clerk, your professional fees, the odd gown/wig repair, and you’re earning less than the median.

    So there’s no incentive for anyone who’s any good to specialise in Crim unless they have a VERY long horizon. OR… unless they take on more prosecutions (most crim barristers work both sides), for which they are paid more.

    Example: barristers who represent the State at “criminal mental impairment” hearings (where decisions are made regarding the continued incarceration of mentally-ill inmates): they get $1500 per *court session*, and a lot of them are not particularly talented or diligent.

    The brute fact is, if you go to the bar and try to be one of those earnest guys who helps protect his fellow man from the State’s lidded glaze, mailed fist and hooded claw… well, you will probably earn less than median earnings for the first 3 or 4 years. Then – if you’re both good and lucky (i.e., you get to junior on a high-profile case) you will get to make a decent living.

    But everyone in the public will think that your job is about getting the guilty off, on some or other “technicality”.

    THAT is the big thing that makes life as a defence barrister difficult – firstly, that your social contacts (those who are not crim defence barristers) think you’re dodgy (yeah, I know – boo hoo, right)… but that is also the case in court – AND juries think “There is no way that the State would prosecute someone they didn’t think is guilty.”

    Judges’ instructions are lenient on prosecutors, and appellate courts reject appeals with ratio decidendi that make it clear that the appellate judge is using circumlocution to rationalise what its clearly just a ‘courtesy’ to the Learned Brother Judge who erred. (One case in particular sticks in my craw, but there are plenty).

    Anyway… this is in my face at the minute because
    (a) The Lovely decided to take the new-fangled Bar exam (after 15 years as a solicitor) and I’m trying to encourage her to specialise in insolvency; and
    (b) an old University chum who speicalises in Crim recently made ‘silk’ (formerly ‘Queens Counsel’, now ‘State Counsel’).

    I want to make it clear though – IANAL: I detest their stupid mediaeval set-piece theatrics, their incestuous relationship with the parasite-political class, and the smugness… oh dear fucking God the smugness. (The Lovely is not like that, and nor is the chum who made silk: but as a class, lawyers – and worse, barristers and judges – are insufferable).

    Plus I’m against compulsory unions generally, so gold-collar unions (for lawyers, doctors, dentists, accountants etc) are particularly disgusting. But it so happens that my Chapter lodge is chock-a-block with barristers and judges. The best raconteur of the bunch is an old QC who did may MANY high-profile crim defences back in the day… and all the old judges think he’s a swell chap, but dodgy as a thrip’ny bit.

  21. #21 |  croaker | 

    @16 What do you call a thousand lawyers at the bottom of the ocean? A good start.

  22. #22 |  CyniCAl | 

    Case in NM that involves a reporter, a video of police brutality, a cop who attempts to destroy evidence, and a civil rights lawsuit:–abc-news-topstories.html

    Here’s the Agitator money quote:

    “We have proof that she deleted the clip,” said [plaintiff’s attorney] Crow. “It’s a pretty egregious case; I think the officer almost committed a crime by tampering with evidence. Because she’s an officer she could get away with it, I think if she was a regular citizen a criminal complaint could’ve been filed.”

    All I have to add is … no fucking shit.

  23. #23 |  Cliché Bandit | 

    CyniCAI beat me to it. Crazy story however.

  24. #24 |  BamBam | 

    Obama declares that legalizing drugs is not the answer at some summit of lords and kings telling their serfs how they shall be ruled.–abc-news-politics.html

  25. #25 |  Marty | 

    #13 | Burgers Allday

    ‘1. Increased aggregate spending on public education is not a bad thing.’

    Lots of fat could be cut out of public education- drug testing, bloated sports programs, bureaucratic testing, etc. We should be reducing the monopoly of public education and looking for innovation. We continue to throw money at under-performing schools and they continue to under-perform. Let’s try something else.

    ‘2. That said, my speculative guess is that national-level public education spending parity would serve to reduce, over the long run (but not neccessarily the short run) money spent on pub ed.’

    I can find nothing to support this- why would anyone think any national-level program would ever reduce spending on anything? Elinor Ostrom has done some interesting studies on the effectiveness of larger govt agencies vs smaller, seemingly less-efficient agencies. Her studies support smaller govt agencies.

    ‘3. Enforced spending parity in criminal cases would almost certainly drastically reduce government spending in this area. On this point, I don’t even think reasonable (and smart) ppl can disagree.’

    I think we could do more good faster by legalizing marijuana and limiting or eliminating immunity for prosecutors and cops. Adding more money to an already corrupt system won’t fix it, in my opinion. This sounds like it may be a reasonable idea, but it wouldn’t be the first thing I’d consider.

  26. #26 |  croaker | 

    @22 “Almost committed a crime”???!!! No, you moron, the cop DID commit a crime, but cops are never charged.

  27. #27 |  Leon Wolfeson | 

    @25 – And requiring rich parents to get much of an education, which is what that really means for the actual system, won’t have an impact? What undermines schools in poorer areas is the rest of the system undermining them in most cases.

    And again, the UK’s professional civil service produces far less miss-charging than America’s system of having often-elected prosecutors cosying up to the police. For that matter, it plain produces a lower rate of charging, given the test of “in the public interest”…

    Your jury selection process is also insane. There are very, very few get-outs or eliminations in the UK system. (Like knowing the offender or victim…the only question asked is if you can give a fair hearing to both sides!)

  28. #28 |  j a higginbotham | 

    #14 croaker – good link (i just finished reading the same)
    wonder what this will do to him next election

  29. #29 |  Ariel | 

    Leon Wolfeson,

    I’ll give you our process of jury selection is insane. All I have ever had to say is 1) I have an engineering degree and 2) my aunt and uncle are cops. One or the other will get me off a jury every time.

    As for the UK’s “professional” civil service, hey, I’ve watched Monty Python and “Yes, Minister” and “Yes, Prime Minister”, so that pig won’t fly either side of the Pond. Does the UK still have the Ministry of Silly Walks?

  30. #30 |  Marty | 

    #27 | Leon Wolfeson

    how would vouchers be ‘requiring rich parents to get much of an education’? the tax money would be attached to the kid and the family would have control of where the kid goes. This would help address property values issues by helping to break undesirable school districts having a monopoly on neighborhoods and families could move their kids to schools they actually like without having to try to sell their homes or move in a down market.

    People who want their kids to continue in the local school will have that option. Parents who aren’t satisfied can shop for another option vs fighting city hall, so to speak.

  31. #31 |  Burgers Allday | 

    I can find nothing to support this- why would anyone think any national-level program would ever reduce spending on anything?

    Because people allow themselves to be taxed more freely when they think that the money will stay in their neighborhood. I think the ppl in the burbs would rather allow the public schools in the burbs to decline in quality than raise the quality of the inner city schools that their families white flighted away from a generation or two back.


    Although I think public education is one of the better things for government to waste money on (as wasting my tax money goes), I care a lot more about equal per pupil per capita spending (by force of law) than I do about lowering my tax bill at the margin. But the point is, enforced public school parity would probably not raise my tax bill. Welfare just isn’t as popular as it used to be (even for those on the Left), and I think people do consider spending on inner city schools as a form of welfare. Maybe they didn’t 30 years ago, but 30 years of welfare-bashing has taken its toll, and to unsophisticated ppl (read: Americans), it is all welfare. Makes it easier that way. You don’t have to think about it. I volunteer at an inner city school. It is not fun because of the rampant misbehavior. When the kids tell me what their lives are like it is sad. Still, I consider important work even though it sometimes seems hopeless.

  32. #32 |  Marty | 

    #31- I don’t recall mentioning welfare, but thanks for figuring out a way to insult me -unsophisticated ppl (read: Americans)-.

    Please come up with something to support your anecdotal evidence supporting your assertions that national parity is anything more than a bureaucratic boondoggle. Is there a single federal program that lowers costs on anything? makes anything more efficient? Washington DC public school system spends over $20,000 per pupil, yet not a single politician I can find enrolls their kids in these schools. It’s comical that the Obama’s (and many of these politicians) look to the private sector when it comes to educating their kids…

    There are ways to increase spending on education that I think would be much more effective- end the drug war and reduce the incarceration rate. The savings could be placed into vouchers and pumped into existing schools. Give people a choice. Address poverty by breaking monopolies that horrible school districts have- people could move into more affordable areas and not be afraid of the schools.

    What is so ‘unsophisticated’ about this?

  33. #33 |  Leon Wolfeson | 

    @30 – It’s about de-funding state schools, as you well know.

    The rich get a tax subsidy they absolutely have no need of, and school budgets for everyone else fall sharply.

  34. #34 |  Sandy ACL | 

    This just shows that there are so-called “prosecuting” and “responsible prosecuting”. The charging power of prosecutors must be put to good use – and we know what that means despite ethical standards already in place.

    On the other hand, other parts of the legal system must be made aware of where prosecutors stand in legal cases. The jury, judge, and defence have as much responsibility in making sure that justice is genuinely served. They should all exemplary perform – and responsibly – their own roles to maintain balance within the legal system.

  35. #35 |  Robert Crew | 

    We (Australia) abolished the death penalty almost 40 years ago, but I’ve long thought that prosecutorial misconduct in a death penalty case, should itself attract the death penalty.