Public Prosecutors in the United States: Position, Powers, and Accountability

Gilliéron, Gwladys

doi:10.1007/978-3-319-04504-7_5

Gwladys Gilliéron²

1051 Accesses

Abstract

This chapter exhaustively describes the position, powers, and accountability of prosecutors in the United States. After a description of the structure and organization of the prosecution service at federal and state levels and an examination of the relationship between the prosecution service and the police, a special focus is put on the broad discretionary power of prosecutors. The prosecutor’s charging decision being the heart of the prosecution function, the decision to charge, what charges to file, when to drop the charges, and whether or not to plea bargain, receive particular attention. Because prosecutorial misconduct is a subject of scholarly concern, it deserves to be discussed. In line with this research, abuse of the charging function, misconduct in the plea bargaining process and in the grand jury are considered in greater detail. Reasons for misconduct, the frequency of prosecutorial misconduct, and available sanctions are outlined. This chapter ends by describing the mechanisms in place to control public prosecutors and the way they can be held accountable.

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Notes

1.
U.S. Attorney’s Manual (USAM), Section 3-2.100 (1997).
2.
Executive Office for the United States Attorneys (2011), p. 1.
3.
For U.S. attorneys having served less than 4 years, see the report of Scott (2007).
4.
See e.g. USAM.
5.
Gramckow (2008), pp. 396–397.
6.
USAM, Section 9-2.001.
7.
See also Sect. 5.1.1.3.2, para 1.
8.
USAM, Section 3-2.210.
9.
The 94 U.S. attorney’s offices vary in size from 20 employees to over 800 employees. For a description of each office, see http://www.justice.gov/usao/about/offices.html (accessed June 23, 2012).
10.
http://www.justice.gov/usao/about/mission.html (accessed June 23, 2012).
11.
See Executive Office for the United States Attorneys (2011), p. 2.
12.
See Executive Office for the United States Attorneys (2011), p. 2.
13.
See Executive Office for the United States Attorneys (2011), Introduction. Staffed branch offices are smaller satellite offices maintained by many U.S. attorney’s offices throughout their districts.
14.
Gramckow (2008), p. 392.
15.
See Abadinsky (1998), pp. 202–204.
16.
Gramckow (2008), p. 399.
17.
U.S. Department of Justice (2008), pp. 9–10.
18.
Gramckow (2008), p. 415.
19.
U.S. Department of Justice (2008), pp. 8–9.
20.
USAM, Section 3-2.200 (1997).
21.
Gramckow (2008), p. 404; Chiu (2008), p. 4.
22.
Law degree in the United States.
23.
The years of litigation experience needed to apply may vary between the vacant positions. Before joining a U.S. attorney’s office, up to 5 years litigation experience may be required.
24.
USAM, Section, 3-2.200.
25.
Chiu (2008), p. 4.
26.
Chiu (2008), pp. 5–6.
27.
Chiu (2008), p. 7.
28.
Chiu (2008), p. 7.
29.
CLE is also known as MCLE (mandatory or minimum continuing legal education).
30.
See Black’s Law Dictionary, 8th ed., s.v. “continuing legal education”.
31.
Gramckow (2008), p. 390.
32.
Perry (2006), p. 1.
33.
Perry (2006), p. 2.
34.
Gramckow (2008), pp. 387–388.
35.
See for example the Los Angeles City Attorney’s Office at http://atty.lacity.org/index.htm (accessed June 23, 2012).
36.
On the selection of the chief prosecutor, see Appendix IV.
37.
Gramckow (2008), pp. 394–396.
38.
Perry (2006), p. 2.
39.
Perry (2006), p. 2.
40.
Gramckow (2008), pp. 390–391.
41.
Gramckow (2008), p. 396. See ABA Prosecutorial Investigations Standard 3.1 (2008). On the role of the prosecutor’s office in sanctioning individual prosecutors for unethical behavior, see Kirchmeier et al. (2010), pp. 1373–1374.
42.
The County Attorney acts as legal advisor for the county officials and county departments [see Minn. Stat., Section 388.051 (2010)]. He may not provide legal advice or assistance to citizens. The County Attorney provides legal advice in areas involving waste management, defending challenges to property tax values, representing the Human Services Department on welfare appeals, enforcing state law and county ordinances concerning environmental and health matters. The County Attorney’s Office also assists the county in defending actions brought in state and federal court, including the appellate courts.
43.
The Criminal Division of the Hennepin County Attorney’s Office has the following divisions: Drugs, Property Crimes, Juvenile Prosecution, Adult Prosecution, Special Litigation, and Victim Services, http://www.hennepinattorney.org/Divisions/CriminalDivision.aspx (accessed June 23, 2012).
44.
Gramckow (2008), pp. 392–393.
45.
Gramckow (2008), p. 393.
46.
See, for example, the Hennepin County Attorney’s Office at http://www.hennepinattorney.org/Communities.aspx (accessed June 23, 2012).
47.
Gramckow (2008), pp. 397–398.
48.
On such guidelines, see Sect. 5.3.7.3.2.3. See also ABA Prosecutorial Investigations Standard 2.15.
49.
Gramckow (2008), p. 400.
50.
Gramckow (2008), p. 400.
51.
Abadinsky (1998), pp. 202–204.
52.
Abadinsky (1998), p. 204.
53.
Gramckow (2008), p. 399.
54.
There are a variety of titles that define a chief prosecutor. Titles include District Attorney, County Attorney, Prosecuting Attorney, Commonwealth Attorney, and State’s Attorney.
55.
The District of Columbia is not mentioned here, since the prosecution of crimes is within the responsibility of the U.S. Attorney’s Office.
56.
Perry (2006), p. 2.
57.
See Appendix IV.
58.
Gramckow (2008), p. 403.
59.
Gramckow (2008), pp. 399–400.
60.
http://legal-dictionary.thefreedictionary.com/Continuing+Legal+Education (accessed June 23, 2012).
61.
See e.g. the continuing legal education program of the Minnesota State Bar at http://www.minncle.org/index.aspx (accessed June 23, 2012). See also the Minnesota State Board of Continuing Legal Education at http://www.mbcle.state.mn.us/MBCLE/pages/home.asp (accessed June 23, 2012).
62.
See Sect. 5.1.1.4, para 1.
63.
On decriminalization, see Sect. 2.2.
64.
On this subject, see Gramckow (2008), pp. 414–423.
65.
On the history of the FBI, see http://www.fbi.gov/about-us/history (accessed July 23, 2012).
66.
See Richman (2003).
67.
See Reaves (2007), p. 1.
68.
Reaves (2007), p. 4.
69.
For an overview over the law enforcement agencies in the U.S., see http://www.usacops.com/ (accessed July 23, 2012).
70.
http://www.nleomf.org/facts/enforcement/ (accessed July 10, 2011). In September 2004, there were 732,000 full-time sworn employees and 46,000 part-time sworn officers (Reaves 2007, pp. 1–2).
71.
One exception to this paradigm is the elected sheriff in each county.
72.
Harris (2011), p. 1.
73.
Weigend (1978), p. 112; Harris (2011), p. 2.
74.
One exception is the state of New Jersey (Gramckow 2008, p. 417, n 128).
75.
Harris (2011), pp. 1–2; McDonald et al. (1982), p. 46; Weigend (1978), pp. 111–113.
76.
McDonald et al. (1982), p. 46.
77.
Abadinsky (1998), pp. 201–202; see also McDonald et al. (1982), pp. 47–48.
78.
See also ABA Prosecutorial Investigations Standard 1.3 (2008).
79.
Gramckow (2008), p. 417.
80.
On the prosecutor acting as legal advisor to the police, see Weigend (1978), pp. 113–114. See also ABA Prosecutorial Investigations Standard 1.3(a)(ii).
81.
Gramckow (2008), pp. 417–419; Harris (2011), pp. 2–3; Weigend (1978), pp. 114–116.
82.
See Sect. 3.1.2.2.
83.
Friedman (1973), pp. 441–444; Dickerson Moore (2000), pp. 377–380; Griffin (2000), p. 263.
84.
See Miller (1970), pp. 159–165.
85.
See Rosett (1972), pp. 21–23; Breitel (1960), pp. 430–432; Dickerson Moore (2000), p. 378; LaFave (1970), pp. 533–534.
86.
Breitel (1960), p. 430; Pound (1960), p. 927; Vorenberg (1976), p. 662; Rosett (1972), p. 25; see also Bubany and Skillern (1976), p. 478; Miller (1970), p. 152; Davis (1969), pp. 17–19.
87.
Vorenberg (1976), p. 662; Davis (2007), p. 14.
88.
LaFave (1970), p. 533; Dickerson Moore (2000), pp. 377–378; see also Lynch (1998), pp. 2136–2139.
89.
E.g., gambling laws which bar all forms of gambling; adultery statutes; see Davis (2007), p. 13; LaFave (1970), p. 533; Dickerson Moore (2000), pp. 377–378.
90.
See e.g. Davis (2007), pp. 3–5; Davis (1969), pp. 17–18; Bubany and Skillern (1976), p. 477.
91.
Misner (1996), pp. 736–741; Griffin (2000), p. 266.
92.
See, e.g. Breitel (1960), p. 429; Rosett (1972), p. 16; Bubany and Skillern (1976), pp. 477–478.
93.
See Sect. 5.3.5.
94.
See Sect. 5.3.6.
95.
See Sect. 5.3.7.
96.
Miller (1970), p. 3; Gottfredson and Gottfredson (1989), p. 113.
97.
The defendant can be asked to provide money bail. It can cause the loss of a job.
98.
The defendant can be held in jail awaiting trial.
99.
Victims, as well as defendants, may bring federal civil right claims against prosecutors alleging racially selective prosecution in violation of the Equal Protection Clause. Such claims may be brought under 42 USC Section 1981–1983, 1985 and under the U.S. Constitution (see Davis 1998, p. 40). See also Singer (2008), p. 31. In this research this question will not be further examined.
100.
The decision on the appropriateness of pre-trial diversion programs is not discussed in this research.
101.
Melilli (1992), p. 671.
102.
See also USAM, Section 9-27.001 (1997).
103.
Gottfredson and Gottfredson (1989), p. 115; Fisher (1988), p. 232, n 152.
104.
Freedman (1975), p. 84; Freedman and Smith (2004), p. 311; Fisher (1988), p. 232, n 152.
105.
Freedman (1975), p. 84; Freedman and Smith (2004), p. 311; Miller (1970), p. 3; Fisher (1988), p. 232, n 152; Vorenberg (1981), p. 1525.
106.
Freedman (1975), p. 84; Freedman and Smith (2004), p. 311; Miller (1970), p. 3; Fisher (1988), p. 232, n 152; Vorenberg (1981), p. 1525.
107.
Freedman (1975), p. 84; Freedman and Smith (2004), p. 311; Gifford (1981), p. 661. The prosecutor’s broad discretion has been recognized on numerous occasions by the courts. See, e.g., Oyler v. Boles, 368 U.S. 448 (1962); Newman v. U.S., 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965), cert. denied, 384 U.S. 906 (1966).
108.
On the victim’s position in the U.S. criminal justice system, see Sect. 3.1.2.5.
109.
Sarat and Clarke (2008), p. 389; Bubany and Skillern (1976), p. 476; Vorenberg (1981), pp. 1524–1532; Vorenberg (1976), p. 678; Krug (2002), p. 645; Griffin (2000), p. 268.
110.
As the Supreme Court noted in U.S. v. Nixon, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case” [U.S. v. Nixon, 418 U.S. 683, 693 (1974)]. See also Gifford (1981), p. 660; Griffin (2000), p. 278. See Sect. 5.5.2.1.
111.
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
112.
See Sects. 6.3.2–6.3.4 for elements of opportunity in the Swiss legal system and Sect. 7.3.3 for cases of opportunity in the German legal system.
113.
See Miller (1970), Chaps. 9–18; Bubany and Skillern (1976), p. 479; Ely (2004), p. 242; Dickerson Moore (2000), p. 377; Gifford (1981), p. 666; Thomas and Fitch (1976), pp. 514–515; Singer (2008), p. 34.
114.
Mills (1966), p. 515.
115.
The arguments in favor of structuring the prosecutor’s discretion through rulemaking are: “(1) rules aid in training of new assistant prosecutors and in the internal review of all prosecution decisions, so that office policy is consistently and efficiently carried out; (2) rules give greater substance to administrative or judicial appeal rights, since in the absence of such rules it is difficult for victims and defendants to discover and prove that they have been treated differently; (3) in some cases, it may also be appropriate for defendants or complainants to challenge prosecution policy itself (as opposed to failures to follow the policy) as being inconsistent with legislative intent or constitutional requirements; (4) rules permit the legislature to know exactly how much of the substantive criminal law is being actively enforced, against which types of offenders, and for what purposes, and this information permits more intelligent and realistic legislative action; (5) rules serve to reassure the public, complainants and defendants that the prosecutor is not above the law; and (6) in the rare cases in which nonprosecution represents de facto decriminalization (such as fornication and homosexuality offenses), potential offenders are entitled to know that their conduct will not be criminally punished, so they need not to fear blackmail or harassment” (Frase 1980, pp. 296–297). The question whether internal guidelines should be made public is controversial (see Thomas and Fitch 1976, pp. 524–526). On the one hand, openness is important for public accountability (Misner 1996, pp. 769–770). On the other hand, there are also good reasons not to publish them. The availability of such guidelines may be of benefit to potential offenders (Frase 1980, p. 297).
116.
See also newly the UN Guidelines on the Role of Prosecutors. The UN Guidelines require that, in countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance the fairness and consistency of approach in making decisions in the prosecution process including the institution or waiver of prosecution (Guideline 17).
117.
These principles were originally promulgated by Attorney General Benjamin R. Civiletti on July 28, 1980 [USAM, Section 9-27.001 (1997)].
118.
USAM, Section 1-1.000 and 9-27.150.
119.
USAM, Section 9-27.001.
120.
USAM, Section 9-27.001.
121.
USAM, Section 9-27.001.
122.
USAM, Section 9-27.120.
123.
USAM, Section 9-27.140.
124.
USAM, Section 9-27.140.
125.
On the ways probable cause is defined, determined and established, see Del Carmen (2007), Chap. 3.
126.
USAM, Section 9-27.200.
127.
USAM, Section 9-27.220.
128.
USAM, Section 9-27.220.
129.
In contrast, in the Swiss criminal justice system, the person’s criminal record is considered in the determination of the sentence.
130.
USAM, Section 9-27.230.
131.
USAM, Section 9-27.240.
132.
USAM, Section 9-27.250.
133.
USAM, Section 9-27.260.
134.
USAM, Section 9-27.260 cmt.
135.
USAM, Section 9-27.260.
136.
Perry (2006), p. 7.
137.
Minn. Stat., Section 388.051, Subdivision 3 (2010).
138.
Minn. Stat., Section 388.051, Subdivision 3(a) (1)–(3).
139.
The American Bar Association (ABA) was founded on August 21, 1878, in Saratoga Springs, New York, and is the largest voluntary professional association in the world. Its mission is “To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession,” http://www.abanet.org/about/history.html (accessed June 23, 2012).
140.
The National District Attorneys Association (NDAA) was founded in 1950 by local prosecutors. It is the oldest and largest professional organization representing prosecutors in the world. One of its purposes is to foster and maintain the honor and integrity of the prosecuting attorneys of the United States, http://www.ndaa.org/ndaa/about/index.html (accessed June 23, 2012).
141.
See, for example, Section 4.2 (“Crime Charging”) of the Ethics and Responsibility for the California Prosecutor, adopted by the California District Attorneys Association (presented in James 1995, p. 25).
142.
USAM, Section 9-2.101 (1997).
143.
On the ABA’s project to revise the criminal justice standards relating to the prosecution function, see Gershman (2011) and Little (2011).
144.
ABA Prosecution Standard 3-1.1 (3rd edn 1993).
145.
ABA Prosecution Standard 3-2.5 (a).
146.
ABA Prosecution Standard 3-34 (a).
147.
ABA Prosecution Standard 3-3.2 (h).
148.
ABA Prosecution Standard 3-3.8.
149.
ABA Prosecution Standard 3-3.9 (a).
150.
ABA Prosecution Standard 3-3.9 (a) cmt. See Sect. 5.3.4.2.4.1 for more information about the ABA Rules of Professional Conduct.
151.
ABA Prosecution Standard 3-3.9 (b).
152.
ABA Prosecution Standard 3-3.9 (b).
153.
ABA Prosecution Standard 3-3.9 (b).
154.
ABA Prosecution Standard 3-3.9 (d).
155.
ABA Prosecution Standard 3-3.1 (b).
156.
On the content and development of these standards, see Pope (2011) and Little (2010).
157.
ABA Prosecutorial Investigations Standard, Preamble (2008).
158.
See ABA Prosecutorial Investigations Standard 2.1(b).
159.
ABA Prosecutorial Investigations Standard 2.1(c)(viii).
160.
ABA Prosecutorial Investigations Standard 2.1(c).
161.
ABA Prosecutorial Investigations Standard 2.1(d)(i).
162.
ABA Prosecutorial Investigations Standard 2.1(d)(ii).
163.
ABA Prosecutorial Investigations Standard 2.1(e).
164.
NDAA Standards 4-1.4 (3rd edn 2009).
165.
NDAA Standards 4-2.2.
166.
The factors are: nature of the offense; probability of conviction; characteristics of the offender; possible deterrent value of prosecution to the offender and society in general; value to society of incapacitating the accused in the event of a conviction; willingness of the offender to cooperate with law enforcement; defendant’s relative level of culpability in the criminal activity; the status of the victim, including the victim’s age or special vulnerability; whether the accused held a position of trust at the time of the offense; excessive cost of prosecution in relation to the seriousness of the offense; recommendations of the involved law enforcement agency; impact of the crime on the community; any other aggravating or mitigating circumstances (NDAA Standards 4-2.4). The 17 factors to be considered in screening (decision to initiate or pursue criminal charges) are listed in 4-1.3 and are quite similar to those to be applied in the charging decision. The availability of suitable diversion and rehabilitative programs may already be considered at screening [NDAA Standards 4-1.3(e)].
167.
James (1995), p. 25.
168.
Standard 4.2 (Crime Charging) of the Ethics and Responsibility for the California Prosecutor, adopted by the California District Attorneys Association (CDAA), quoted in James (1995), p. 25.
169.
“The prosecutor has considered the probability of conviction by an objective fact-finder hearing the admissible evidence. The admissible evidence should be of such convincing force that it would warrant conviction of the crime charged by a reasonable and objective fact-finder after hearing all the evidence available to the prosecutor at the time of charging and after hearing the most plausible, reasonably foreseeable defense that could be raised under the evidence presented to the prosecutor” (CDAA, Standard 4.2(A)(d) of the Ethics and Responsibility for the California Prosecutor, quoted in James 1995, p. 25).
170.
James (1995), p. 25.
171.
The factors considered in making this decision are the same as those mentioned in the ABA Prosecution Standards (see Sect. 5.3.4.2.2.1, para 5).
172.
Chapter 9.94A.
173.
RCW 9.94A.401.
174.
RCW 9.94A.411 (2)(a).
175.
RCW 9.94A.411 (2)(a).
176.
RCW 9.94A.411 (2)(a)(ii).
177.
RCW 9.94A.411 (2)(a)(ii)(A) and (B).
178.
Preceding the Model Code were the 1908 Canons of Ethics.
179.
California has adopted neither the Model Code nor the Model Rules. California has its own code of professional responsibility. The Rules of Professional Conduct in California are currently being revised. See http://ethics.calbar.ca.gov/Committees/RulesCommission.aspx (accessed September 13, 2012).
180.
An overview of the dates of adoption of the Model Rules of Professional Conduct by jurisdiction is available at http://www.abanet.org/cpr/mrpc/alpha_states.html (accessed June 7, 2010).
181.
ABA Model Rules of Professional Conduct, R. 3.8 (a) (2010); Minnesota Rules of Professional Conduct, R. 3.8 (a) (2011). See also ABA Model Code of Professional Responsibility, DR 7-103 (A) (1983).
182.
ABA Model Rules of Professional Conduct, R. 3.8 (d); Minnesota Rules of Professional Conduct, R. 3.8 (d). See also ABA Model Code of Professional Responsibility, DR 7-103 (B).
183.
The International Association of Prosecutors (IAP) was established in 1995 and is a non-governmental and non-political organization. It is the only world organization of prosecutors. One of its objects is “to promote the effective, fair, impartial and efficient prosecution of criminal offences,” http://www.iap-association.org/default.aspx (accessed June 23, 2012).
184.
IAPS 3 (1999).
185.
IAPS 1.
186.
IAPS 4.2.
187.
IAPS 4.3.
188.
Griffin (2000), p. 268; Misner (1996), p. 744; Zacharias (2001), p. 735, n 57; Vorenberg (1981), p. 1544.
189.
Freedman and Smith (2004), p. 315; Melilli (1992), pp. 680–681.
190.
USAM, Section 9-27.200 cmt (1997).
191.
USAM, Section 9-27.220.
192.
In order to make the decision to proceed, the prosecutor has to apply a so called “prima facie” test. This means that the prosecutor evaluates if the evidence is sufficient to survive a motion for a judgment of acquittal at the end of the government’s case (Freedman and Smith 2004, p. 315).
193.
Melilli (1992), p. 681.
194.
ABA Prosecution Standard 3-3.9 (a).
195.
ABA Prosecution Standard 3-3.9 cmt.
196.
ABA Model Code of Professional Responsibility, EC 7-13.
197.
Gifford (1981), p. 666; Davis (1998), p. 21.
198.
Sarat and Clarke (2008), p. 391; Thomas and Fitch (1976), pp. 515–517.
199.
The various U.S. Attorneys’ Annual Statistical Reports provide information about the reasons for declination for federal prosecution, but it’s not possible to know the proportion of cases declined from the matters concluded. Furthermore, they do not give detailed information about offenses that are more likely to be prosecuted than others. Hence, the following data are taken from the most recent Federal Justice Statistics (Motivans 2011). For a detailed discussion about federal prosecutorial declinations between 1994 and 2000, see O’Neill (2004).
200.
Motivans (2011), Table 2.2. A total of 193,234 criminal matters (suspects) were concluded during 2009.
201.
According to the U.S. Attorney’s Annual Statistical Reports, the same trend may be observed. Whereas in 1999 federal prosecutors declined 35,671 criminal cases, in 2010 this number reached 26,479 (Executive Office for the United States Attorneys 2000, p. 11; Executive Office for the United States Attorneys 2011, p. 9). Since data for decisions not to prosecute are provided on a per-case basis and decisions for prosecution (U.S. district court and before U.S. magistrates) are calculated on a per-defendant basis, it is not possible to compute the percentage of criminal cases declined.
202.
See e.g. the annual Uniform Crime Reports, Crime in the United States published by the Federal Bureau of Investigation, available at http://www.fbi.gov/about-us/cjis/ucr/ucr#cius (accessed June 23, 2012). Another-but less probable-explanation for this decrease might be improvements in the quality of referrals made by government agencies (see O’Neill 2004, p. 1445).
203.
Matters in which prosecutors spend less than 1 h are mostly such cases in which the suspect is unknown (Informal discussion with Richard Frase on June 4, 2010).
204.
Frase (1980), p. 251.
205.
Frase (1980), pp. 256–257.
206.
Informal discussion with Richard Frase on June 4, 2010.
207.
Motivans (2011), Table 2.2.
208.
Executive Office for the United States Attorneys (2010), pp. 1 and 21–40.
209.
Motivans (2011), Table 2.3. These grounds (lack of evidence) are less likely to be questioned (Miller 1970, pp. 154–157; Bubany and Skillern 1976, p. 479, n 28).
210.
Motivans (2011), Table 2.3.
211.
Motivans (2011), Table 2.3.
212.
Offenses against the person include the following: assault, att. murder, child neglect/child endangerment, domestic assault by strangulation, harassing, malicious punishment of a child, murder, manslaughter, and stalking. Offenses against the person are charged in about 77 % of the cases (3 year averages).
213.
Property offenses include burglary, damage to property, defrauding an insurer, financial transaction card fraud, identity theft, lottery fraud, mail theft, receiving stolen property, robbery, theft, welfare fraud, worthless checks, and unemployment compensation benefits fraud. Not included are: possession of stolen/counterfeit checks, possession of theft tools, and possession of stolen property. Property offenses are charged in about 81 % of the cases (3 year averages).
214.
Drug offenses include the following: controlled substance crimes (cocaine, heroin, mj., meth., psilocin). Drug offenses are charged in about 82 % of the cases (3 year averages).
215.
Offenses against sexual integrity include: crime sex conduct, sex conduct, solicitation of a child to engage in sexual conduct, use of minors in sexual performances. Offenses against sexual integrity are dismissed in about 65 % of the cases (3 year averages).
216.
For the exact data, see Appendix V.
217.
The Metropolitan Crime Commission (MCC) is a non-profit, citizen’s organization dedicated to exposing and eliminating public corruption and to reducing the incidence of crime and improving the administration of justice in order to improve the quality of life for citizens in the Baton Rouge and New Orleans metropolitan areas and throughout Louisiana. Established in 1993, the Metropolitan Crime Commission’s Research Program applies objective research and analysis to improve policy choices and decision-making in the criminal justice system. The research program has three underlying goals: “(1) Promote accountability and transparency in the criminal justice system and other governmental agencies; (2) Provide accurate information to decision-makers by identifying the strengths of existing practices and providing alternatives to improve governmental effectiveness and efficiency; (3) Educate the public through the dissemination of our research results,” http://www.metropolitancrimecommission.org/html/research.html (accessed June 23, 2012).
218.
Metropolitan Crime Commission (2012a), p. 2.
219.
Metropolitan Crime Commission (2012b), pp. 1–4.
220.
Cohen and Kyckelhahn (2010), Table 11.
221.
Cohen and Reaves (2006), Table 23.
222.
Rainville and Reaves (2003), Table 23.
223.
Reaves (2001), p. 24.
224.
For the methodology of this survey, see Cohen and Kyckelhahn (2010), pp. 15–17.
225.
Vera Institute of Justice (1977), pp. 6–8.
226.
Vera Institute of Justice (1981), p. 143.
227.
Greenwood et al. (1973), p. ix. During 1971, the District Attorney modified practices in the Office by prescribing the circumstances under which certain felonies should be filed as misdemeanor. Prior to the change, the dismissal rate was 45 %, whereas after the change it was 54 % (Greenwood et al. 1973, pp. ix and 61).
228.
Greenwood et al. (1973), pp. xi and 72–73.
229.
Estimations are calculated with available statistical information for the years 1965–1969 (McIntyre and Lippmann 1970, p. 1156).
230.
In Chicago, Brooklyn, and Baltimore no declinations were reported. In these jurisdictions many cases were screened out at preliminary hearing, e.g. 80 % in Chicago (McIntyre and Lippmann 1970, p. 1156).
231.
A replication analysis was conducted for seven jurisdictions but will not be presented here. Whereas all presented studies deal with felonies, the replication analysis considers felonies and misdemeanors and is therefore not comparable with the others (Forst et al. 1982, p. 8).
232.
In the District of Columbia, the U.S. attorney is responsible for the prosecution of both federal and common law offenses.
233.
Forst et al. (1977), p. 67.
234.
Forst et al. (1977), pp. 68–69.
235.
Brosi (1979), p. 7.
236.
Brosi (1979), p. 12.
237.
Metropolitan Crime Commission (2009), p. 3.
238.
Anoka County Attorney Robert Johnson, e-mail message to author, November 9, 2010.
239.
Greenwood et al. (1973), pp. 73–75.
240.
Analyses of decision-making have been conducted for the following five offenses: felony assault (plus rape, murder, and attempted murder), robbery, burglary, grand larceny, and gun possession (Vera Institute of Justice 1977, p. 19; Vera Institute of Justice 1981, p. 19).
241.
Vera Institute of Justice (1977), p. 19; Vera Institute of Justice (1981), p. 19.
242.
Vera Institute of Justice (1977), p. 20; Vera Institute of Justice (1981), p. 20.
243.
Forst et al. (1977), p. 67. The replication analysis found the same results: Witness and evidence problems were the most commonly cited reasons for the rejections (Forst et al. 1982, pp. 9–10).
244.
Forst et al. (1977), p. 67.
245.
Some differences appeared between the analyzed cities. The frequency of evidence problems as reason for non-filing decisions ranged from 17 % in Cobb County, Georgia to 56 % in Salt Lake City, Utah. Witness problems were the reason for non-filing criminal charges in 6 % of the Los Angeles cases and 63 % of Cobb County cases rejected at screening (Brosi 1979, p. 16).
246.
Brosi (1979), p. 16.
247.
Brosi (1979), p. 17.
248.
Brosi (1979), p. 18.
249.
Feeney et al. (1983), pp. 202–206.
250.
Feeney et al. (1983), p. 204.
251.
Feeney et al. (1983), p. 53.
252.
See Metropolitan Crime Commission (2002), p. 8; Brosi (1979), p. 13.
253.
On plea bargaining, see Sect. 5.3.7.
254.
Singer (2008), p. 38.
255.
A survey among Wisconsin district attorneys confronted with exactly the same case found that charging decisions varied dramatically (see Mayer 1996, pp. 299–300).
256.
Singer (2008), pp. 38–39.
257.
LaFave et al. (2007), Section 13.1 (e). See also Singer (2008), p. 39.
258.
LaFave et al. (2007), Section 13.1 (e).
259.
ABA Prosecution Standard 3-3.9 (f) (3rd edn 1993). See also USAM, Section 9-27.300 (B) (1997) advising that “Charges should not be filed simply to exert leverage to induce a plea.”
260.
Singer (2008), p. 39; Miller and Wright (2007), p. 939.
261.
See U.S. v. Batchelder, 442 U.S. 114 (1979); see also State v. Tanya Caskey, 539 N.W.2d 176 (Iowa 1995); State v. Watts, 601 S.W.2d 617, 620 (Mo. banc 1980).
262.
For a detailed analysis of the Thornburg Memorandum, the Reno Memorandum, and the Ashcroft Memorandum, see Federal Bar Council (2004).
263.
USAM, Section 9-27.300 (1997).
264.
The selection of charges should also be based on “an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the federal criminal code, and maximize the impact of federal resources on crime” (Reno 1993, p. 1).
265.
The Ashcroft Memorandum articulated the following six exceptions: (1) Sentence would not be affected; (2) “Fast-track” programs; (3) Post-indictment reassessment; (4) Substantial assistance; (5) Statutory enhancements, and (6) Other Exceptional Circumstances, with written supervisory approval (Ashcroft 2003, pp. 3–5). See Ely (2004), pp. 255–256.
266.
Regarding the prosecutor’s decision to charge, the Ashcroft Memorandum stated that: “It is the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case…. The most serious offenses are those that generate the most substantial sentence” (Ashcroft 2003, p. 2).
267.
Critics of prosecutorial discretion also admit that the Ashcroft Memorandum was not a good solution (Osler 2005, pp. 634–635).
268.
Caves (2008), p. 7; Ely (2004), pp. 263–277.
269.
Before the Ashcroft Memorandum, federal prosecutors were free to decline prosecution for various reasons (e.g. suspect has already made restitution, suspect’s culpability is minimal).
270.
Caves (2008), p. 18.
271.
Holder (2010), p. 2.
272.
Holder (2010), p. 2.
273.
Singer (2008), p. 39.
274.
NDAA Standards 4-2.2 and 4-2.4 (3rd edn 2009).
275.
NDAA Standards 4-2.2.
276.
“The nature of the offense, including whether the crime involves violence or bodily injury; the probability of conviction; the characteristics of the accused that are relevant to his or her blameworthiness or responsibility, including the accused’s criminal history; potential deterrent value of a prosecution to the offender and to society at large; the value to society of incapacitating the accused in the event of a conviction; the willingness of the offender to cooperate with law enforcement; the defendant’s relative level of culpability in the criminal activity; the status of the victim, including the victim’s age or special vulnerability; whether the accused held a position of trust at the time of the offense; excessive costs of prosecution in relation to the seriousness of the offense; recommendation of the involved law enforcement personnel; the impact of the crime on the community; any other aggravating or mitigating circumstances” (NDAA Standards 4-2.4).
277.
Singer (2008), p. 39.
278.
See Osler (2005), pp. 636–637.
279.
See Osler (2005), pp. 637–638.
280.
See Osler (2005), pp. 638–640.
281.
USAM, Section 9-27.300 (1997).
282.
USAM, Section 9-27.400 (B).
283.
USAM, Section 9-27.400 (B). See also e.g. Ashcroft (2003), p. 5.
284.
USAM, Section 9-27.230 (B). See Sect. 5.3.4.2.1.1, paras 6–8 and Osler (2005), p. 638.
285.
USAM, Section 9-27.230 (A).
286.
See Osler (2005), pp. 639–640. On the possibilities to guide discretion see Osler (2005), pp. 640–654.
287.
For a historical overview of plea bargaining, see e.g. Fisher (2004), Alschuler (1979), Friedman (1979) and Langbein (1979).
288.
A plea of nolo contendere (I will not contest the charges) allows the court to pronounce a sanction the same as if the defendant had pleaded guilty. The difference is that a plea of nolo contendere cannot be used against the defendant to prove wrongdoing in any civil litigation. A plea of nolo contendere may be entered after the court has agreed.
289.
Bureau of Justice Statistics (2010), Table 5.22.2010.
290.
In 2006, there were a total of 81 convictions for murder. 42 were resolved through guilty pleas and 39 through a trial.
291.
Cohen and Kyckelhahn (2010), Table 11.
292.
Anoka County Attorney’s Office (2007, 2008, 2009, 2010) (for the exact data, see Appendix V). In Ramsey County, approximately 98 % of the convictions were the result of a guilty plea in 2009 (statistical information received by e-mail from Jill Gerber, 16 December, 2010). In Hennepin County, about 95 % of criminal cases are resolved through plea bargains (statistical information received by e-mail from Jodie Wierimaa, September 21, 2010).
293.
According to the Black’s Law Dictionary, “plea bargain” is “[a] negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges” (Black’s Law Dictionary, 8th ed., s.v “plea bargain”). On the different forms of plea bargaining see e.g. LaFave et al. (2007), Section 21.1 (a).
294.
This is called “charge bargaining”. See FRCrP 11(e)(1)(A).
295.
This is called “sentence bargaining”. See FRCrP 11(e)(1)(B).
296.
Legislatures, prosecutorial supervisors, and judges may impose some limits on plea bargaining. For example, it is not unusual for legislatures to instruct prosecutors not to dismiss or reduce charges for specific crimes (see e.g. Nev. Rev. Stat. Section 483.560, 484.3792). On the categorical restrictions on plea bargaining, see Miller and Wright (2007), pp. 1117–1161.
297.
Singer (2008), p. 138.
298.
For an overview of state sentencing guidelines, see Kauder and Ostrom (2008).
299.
Singer (2008), p. 138.
300.
“Implicit plea bargaining” is generally contrasted with “express bargaining”, which includes charge and sentence bargaining.
301.
LaFave et al. (2007), Section 21.1(a). See also Miller and Wright (2007), p. 1107.
302.
Miller and Wright (2007), pp. 1154–1161; see Tobolowsky et al. (2010), pp. 76–89; Beloof et al. (2006), pp. 476–497. For a comparison of U.S. and Swiss crime victims’ rights in general, see Appendix II and for the crime victims’ rights in the plea bargaining, see Appendix III.
303.
Plea bargaining is not a creature of law, but is one of legal practice. The Supreme Court recognized and accepted plea bargaining as legitimate in Santobello v. New York 404 U.S. 257 (1971). The court stated that plea bargaining had become “an essential component of the administration of justice” and that “[i]f every criminal charge were subject to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities” (Santobello v. New York, 260). Furthermore, it held that plea bargaining should be “encouraged” (Santobello v. New York, 260).
304.
The Equal Protection Clause is part of the 14th Amendment to the U.S. Constitution.
305.
Lawless (2008), Section 6:06, n 55. On the problem of disparity, see Sect. 5.3.7.3.1.
306.
Singer (2008), p. 120. See e.g. U.S. v. Mezzanatto, 513 U.S. 196, 201 (1995).
307.
Miller and Wright (2007), pp. 1115–1116.
308.
I will not discuss the problem of “Alford pleas” (defendant pleads guilty but at the same time insists that he did not commit the crime). See Miller and Wright (2007), pp. 1173–1179; Del Carmen (2007), p. 47.
309.
On the prerequisites of a valid guilty plea, see Miller and Wright (2007), pp. 1161–1186; Singer (2008), pp. 120–127.
310.
See Alschuler (1976), pp. 1065–1066.
311.
Judge John Sommerville (Hennepin Court) sees no reason to refuse a plea bargain if the prosecutor and the defendant can reach an agreement. A guilty plea may be refused in cases involving guns (informal discussion with Judge John Sommerville on May 6, 2010).
312.
Wright (2009), p. 587.
313.
Some claim that without plea bargaining the criminal justice system would collapse due to the high amount of criminal cases (see Gershman 2007–2008, Section 7:1. Others consider this practice an abuse that should be abolished (see, e.g. Langbein 1978; Schulhofer 1992; Lawless 2008, Section 6.01). The following section will not discuss the risk of wrongful convictions related to the practice of plea bargaining.
314.
Singer (2008), p. 133; Gershman (2007–2008), Section 7:1; Lawless (2008), Section 6.01.
315.
See Sect. 5.3.7.1, para 1.
316.
The Supreme Court has recognized the value of jury trials in stating that “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Furthermore, the Court said that “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence” [Williams v. Florida, 399 U.S. 78, 100 (1970), quoting Duncan v. Louisiana, 391 U.S. 145, 156 (1968)].
317.
Barkow (2006), p. 1048.
318.
The federal rules require the court to find that there is a “factual basis” for the plea, and not that the defendant is actually guilty. In U.S. v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997) the Court held that “Rule 11(f) does not require that the court be satisfied that a jury would return a verdict of guilty. Nor does it require the court to weigh evidence to assess whether it is even more likely than not that the defendant is guilty. Indeed, when the court considers a plea of guilty prior to trial, it often has no actual evidence to assess.”
319.
Lynch (1998), p. 2122.
320.
The judge must determine “that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty” [U.S. v. Maher, 108 F.3d 1513, 1524 2d Cir. (1997)].
321.
Lynch (1998), p. 2123.
322.
Lynch (1998), p. 2135.
323.
Lynch (1998), p. 2127.
324.
Lynch (1998), p. 2128.
325.
Lynch (1998), p. 2135.
326.
The Rules of Criminal Procedure do not give a defendant the right to be heard by the prosecutor (Lynch 1998, p. 2124). Although the prosecutor is not obliged to listen to the defendant’s arguments, it is almost always in the prosecutor’s interest to do so (see Lynch 1998, p. 2125).
327.
Lynch (1998), p. 2135.
328.
Lynch (1998), pp. 2129, 2131–2132. See also Wright and Miller (2003), p. 1411. On the problem of disparity, see Sect. 5.3.7.3.1.
329.
Lynch (1998), p. 2135.
330.
Lynch (2003), p. 1404.
331.
Barkow (2006), p. 1050.
332.
See Sect. 5.4 for prosecutorial misconduct.
333.
Barkow (2006), p. 1049.
334.
“Someone vested with both executive and judicial powers will undoubtedly decide whether someone has violated the laws. But she will make this decision only once and not twice. When it comes to law execution, the genius of the separation of powers is that, typically, two branches must independently conclude that some party has violated the law before anyone is punished. That benefit is clearly absent when the executive and judiciary are one and the same” (Prakash 2005, p. 545, n 147). Wright expresses a similar concern: “Sentencing discounts resting solely in the hands of prosecutors, such as substantial assistance departures create the greatest threat of trial distortion. The size of the trial penalty can remain reasonably small and relatively uncertain–as it should be–only if judges retain some authority to disagree with prosecutors about proposed discounts. Rules that designate judges as legitimate counterweights to prosecutors create a separation of powers for sentencing, a state of affairs that holds the best hope for reliable and accurate criminal justice” (Wright 2005, p. 139).
335.
See LaFave et al. (2007), Section 21.1 (e).
336.
E.g. Hitchcock v. Wainwright, 745 F.2d 1332 (11th Cir. 1984); U.S. v. Lippert, 740 F.2d 457 (6th Cir. 1984); Smith v. Wainwright, 664 F.2d 1194 (11th Cir. 1981); Wade v. State, 802 So.2d 1023 (Miss.2001); State v. Davis, 155 Vt. 417, 584 A.2d 1146 (1990); Drinkwater v. State, 73 Wis.2d 674, 245 N.W.2d 664 (1976).
337.
U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998).
338.
Bradley (1999), p. 66. In contrast, see Greene Burnett (1999).
339.
Bradley (1999), p. 65.
340.
ABA Pleas of Guilty, Standard 14-1.8 (a) (3rd edn 1999).
341.
See LaFave et al. (2007), Section 21.1 (e).
342.
USSG Section 3E1.1 (a) (2012).
343.
USSG Section 5K3.1 allows up to a four level deduction for defendants pleading guilty in fast-track jurisdictions.
344.
See e.g. U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989); U.S. v. Guarin, 898 F.2d 1120 (6th Cir. 1990); U.S. v. Harris, 882 F.2d 902 (4th Cir. 1989).
345.
See Bemporad (2011), p. 14.
346.
USSG Section 3E1.1 cmt; see also Bemporad (2011), p. 14.
347.
For 2004, the Bureau of Justice Statistics reports that “the average prison term imposed on defendants convicted at trial was almost three times longer than the term imposed on defendants convicted by plea. Defendants convicted at trial received 148.2 months on average, while those convicted by plea received an average of 56.2 months” (Smith and Motivans 2006, pp. 70–71). Judge Heaney reported that, under the sentencing guidelines, defendants who went to trial were sentenced to two-and-a-half more years than defendants who pleaded guilty, whereas, under pre-guidelines law, the sentencing difference was on average 1 year and 2 months (Heany 1991, pp. 176–179).
348.
In 2004, for instance, drug offenders convicted at trial received an average of 195.9 months compared to the 79.5 months for drug offenders convicted by guilty plea (Smith and Motivans 2006, pp. 70–71).
349.
Due to certain restrictions on plea bargaining, the prosecutor may not always be able to propose an offer. Limits may be placed by legislatures, prosecutorial supervisors, and judges. On the limits to plea bargaining, see Miller and Wright (2007), pp. 1117–1161.
350.
For the federal plea bargaining policies, see USAM, Section 9-27.400–450 (1997).
351.
Federal prosecutors take the following considerations into account when deciding whether to enter into a plea agreement with the defendant: defendant’s cooperation; defendant’s criminal history; nature and seriousness of offense charged; defendant’s attitude; prompt disposition; likelihood of conviction; effect on witnesses; probable sentence; trial rather than plea; expense of trial and appeal; prompt disposition of other cases (USAM, Section 9-27.420).
352.
USAM, Section 9-27.430.
353.
Miller and Wright (2007), p. 1129.
354.
On the different memos issued by the Federal Attorney Generals, see Sect. 5.3.6.2.1.
355.
Holder (2010), p. 2.
356.
Holder (2010), p. 2.
357.
Holder (2010), p. 2.
358.
Holder (2010), p. 2.
359.
Holder (2010), p. 2.
360.
For a detailed discussion of how the Ashcroft Memorandum has limited discretion with regard to plea bargaining, see Ely (2004).
361.
Ashcroft (2003), p. 6. In case of sentence bargaining, the federal prosecutor with approval of an assistant attorney general, U.S. attorney, or designated supervisory attorney, might depart only in the following circumstances: (1) the defendant has provided “substantial” assistance; (2) the office has a “fast-track” program for the offense; (3) in “rare occurrences” prosecutors may acquiesce in other downward departures, but they must “affirmatively oppose downward departures that are not supported by the facts and the law, and cannot agree to “stand silent” with respect to such departures” (Ashcroft 2003, p. 7).
362.
Miller and Wright (2007), pp. 1143–1144.
363.
The reasons why offices want to keep their plea bargaining policies informal and unwritten include: ill effects on deterrent value of criminal law, unfavorable public impressions of perceived lenient policies, need for flexibility in unusual cases, need to avoid judicial review of prosecutorial decisions (see Pizzi 1993, pp. 1364–1367). For advantages of written guidelines, see Mayer (1996), pp. 304–306. Benefits of guidelines made public include: leads to effective use of resources, helps to set priorities and allocating resources accordingly, greater understanding of decision-making process, inform the public of its elected officials’ policies (Mayer 1996, pp. 304–306).
364.
Miller and Wright (2007), p. 1129.
365.
Pizzi (1993), p. 1344.
366.
For a detailed discussion of written guidelines that were in place in the Manhattan District Attorney’s Office while Richard Kuh was the District Attorney, see Kuh (1975).
367.
Pizzi (1993), pp. 1344–1345.
368.
Minn. Stat., Section 388.051, Subdivision 3 (2010). The American Bar Association suggests that every prosecutor’s office adopt written policies that guide prosecutorial discretion [ABA Prosecution Standard 3-2.5 (3rd edn. 1993)].
369.
Minn. Stat., Section 388.051, Subdivision 3(a) (1)–(3).
370.
For an example of published guidelines in the state of Minnesota, see the Rice County Attorney’s Office. Their office policies and procedures can be found at http://www.co.rice.mn.us/attorney/ (accessed June 24, 2012).
371.
Case disposition policies from 08/11/09.
372.
Section II.D.2.b. of the Minnesota Sentencing Guidelines sets out a nonexclusive list of aggravating factors: (1) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender, (2) The victim was treated with particular cruelty for which the offender should be held responsible; (3) The current conviction is for a Criminal Sexual Conduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a Criminal Sexual Conduct offense or an offense in which the victim was otherwise injured; (4) The offense was a major economic offense; (5) The offense was a major controlled substance offense; (6) The offender committed, for hire, a crime against the person; (7) Offender is sentenced according to Minn. Stat., Section 609.3455, Subdivision 3a; (8) Offender is a “dangerous offender who commits a third violent crime” (see Minn. Stat., Section 609.1095, Subdivision 2); (9) Offender is a “career offender” (see Minn. Stat., Section 609.1095, Subdivision 4); (10) The offender committed the crime as part of a group of three or more persons who all actively participated in the crime; (11) The offender intentionally selects the victim or the property against which the offense is committed, in whole or in part, because of the victim’s, the property owner’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability, age or national origin; (12) The offender’s use of another’s identity without authorization to commit a crime. This aggravating factor may not be used when the use of another’s identity is an element of the offense.
373.
Section II.D.2.a of the Minnesota Sentencing Guidelines sets out a non-exclusive list of mitigating factors: (1) The victim was an aggressor in the incident; (2) The offender played a minor role in the crime or participated under circumstances of coercion or duress; (3) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor; (4) The offender’s presumptive sentence is a commitment to the commissioner but not a mandatory minimum sentence, and either of the following exist: (a) The current conviction offense is at severity level I or II and the offender received all of his or her prior felony sentences during less than three separate court appearances; or (b) The current conviction offense is at severity level III or IV and the offender received all of his or her prior felony sentences during one court appearance; (5) Other substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense; (6) Alternative placement for offender with serious and persistent mental illness (See Minn. Stat., Section 609.1055).
374.
Case disposition policies of the Office of the Hennepin County Attorney.
375.
On the Victims Rights in Minnesota, see Appendix II.
376.
E.g. Heinous crimes (Minn. Stat., Section 609.106), certain murders (Minn. Stat., Section 609.107), repeat sex offenders (Minn. Stat., Section 609.109), dangerous and repeat felony offenders (Minn. Stat., Section 609.1095), gun crimes and felon in possession crimes (Minn. Stat., Section 609.11), DWI (Minn. Stat., Section 169A.275), certain burglaries (Minn. Stat., Section 609.582, 609.583), assault on peace officers (Minn. Stat., Section 609.221), repeat domestic assaults (Minn. Stat., Section 609.2243).
377.
These parameters are explained in the case disposition policies of the Hennepin County Attorney’s Office and vary depending on the charge(s) the defendant is accused of.
378.
Level I–IV and F and G Offenses.
379.
Defendant pleads guilty but at the same time insists that he did not commit the crime.
380.
The guidelines from the Rice County Attorney’s Office (MN) are very similar and can be found at http://www.co.rice.mn.us/uploadedcontent/forms/negotiations.pdf (accessed June 23, 2012).
381.
The five approval authorities are: the weekly Criminal Division meeting, the Property Crimes Unit’s Managing Attorney, the Violent Crimes Unit Managing Attorney, the Chief Deputy County Attorney, the County Attorney.
382.
Level of offense: I–IV; F and G Offenses.
383.
Approval is only required if the assistant prosecutor is in the office for less than 1 year.
384.
Black’s Law Dictionary, 8th ed., s.v. “prosecutorial misconduct.”
385.
Fisher (1989), p. 9.
386.
See Diepraam (2006), p. 776; Jonakait (1987), p. 560, n 23.
387.
Gershman (2007–2008).
388.
Lawless (2008).
389.
“When courts and commentators talk about prosecutorial misconduct, they often are referring to the prosecutor’s argument to the jury” Gershman (2007–2008), Section 11:1. “When one thinks of ‘prosecutorial misconduct’ one immediately envisions the prosecutor railing before the jury, spewing invectives, and verbally abusing the defendant, defense counsel, and those laws which protect and coddle criminals” (Lawless 2008, Section 9:01).
390.
See e.g. Gershman (1995), Singer (1968), Celebrezze (1987), and Alschuler (1972). For a discussion about the prosecutor’s trial (mis-) conduct, see Gershman (2007a), Section 2-1–2-10.
391.
For a detailed discussion, see Gershman (2007–2008), Chap. 11 and Lawless (2008), Chap. 9.
392.
For an overview of overturned convictions see Gershman (2007a), Section 2-2(b)(1). Studies that primarily identified prosecutorial misconduct through the analysis of appellate rulings arrive at the same conclusion (see Ridolfi and Possley 2010, pp. 36–38; Armstrong and Possley 1999). See also Pollock (2010), p. 290.
393.
On the development of the Brady doctrine and its significance, see Gershman (2007–2008), Chap. 5.
394.
Ridolfi and Possley (2010), pp. 36–37.
395.
See Gershman (2007b), p. 533. See also Ridolfi and Possley (2010), pp. 36–38; Armstrong and Possley (1999). For examples of capital cases where exculpatory evidence was withheld, see Kirchmeier et al. (2010), pp. 1337–1342.
396.
For an excellent review of empirical research and discussion on racial disparity in charging decisions, see Free (2002). In his paper, he arrived at the conclusion that, in the majority of studies in which the impact of defendant race on prosecute/dismiss decisions was examined, no significant relationship between defendant race and prosecute/dismiss decisions was disclosed. However, studies of prosecutorial discretion in capital charging provided evidence of unwarranted racial disparity. Furthermore, empirical research supports the assumption that prosecutors are more likely to charge defendants with capital offenses when their victims are white.
397.
Singer (2008), p. 41; Lawless (2008), Section 3.23; Gershman (2007–2008), Section 4:9.
398.
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
399.
U.S. v. Berrios, 501 F.2d 1207 (2d Cir. 1974).
400.
U.S. v. Berrios, 1211.
401.
Wayte v. U.S., 470 U.S. 598 (1985).
402.
Wayte v. U.S., 608.
403.
U.S. v. Armstrong, 517 U.S. 456 (1996).
404.
U.S. v. Armstrong, 465 [quoting U.S. v. Chemical Foundation, 272 U.S. 1, 14–15 (1926)]. For further details, see Sects. 5.4.2.1.1.1–5.4.2.1.1.3.
405.
U.S. v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).
406.
See e.g. U.S. v. Jones, 159 F.3d 969, 977 (6th Cir. 1998); U.S. v. Graham, 146 F.3d 6, 9 (1st Cir. 1998); U.S. v. Nelson, 137 F.3d 1094, 1105 (9th Cir. 1998).
407.
See e.g. U.S. v. Jennings, 724 F.2d 436, 446 (5th Cir. 1984); U.S. v. Greene, 697 F.2d 1229, 1234 (5th Cir.). cert. denied, 463 U.S. 1210, 103 S. Ct. 3542, 77 L. Ed. 2d 1391 (1983).
408.
U.S. v. Armstrong, 517 U.S. 456 (1996).
409.
See also U.S. v. Jones, 287 F.3d 325 (5th Cir. 2002); U.S. v. Gutierrez, 990 F.2d 472, 476 (9th Cir. 1993); U.S. v. Kearney, 436 F. Supp. 1108 (S.D. N.Y. 1977); U.S. v. Bass, 536 U.S. 862, 122 S. Ct. 2389, 153 L. Ed. 2d 769 (2003) (“raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants”).
410.
But see U.S. v. Jones, 159 F.3d 969, 978, 1998 FED App. 0331 (6th Cir. 1998).
411.
U.S. v. Armstrong, 465. Other language in the opinion differentiated the standard only slightly. The Court held that to obtain discovery, a defendant must produce “some evidence that similarly situated defendants could have been prosecuted, but were not” (U.S. v. Armstrong, 469). It also held that the defendant must make a “credible showing of different treatment of similarly situated persons” (U.S. v. Armstrong, 470).
412.
U.S. v. Armstrong, 470.
413.
See e.g. Oyler v. Boles, 368 U.S. 448 (1962); U.S. v. Lawrence, 179 F.3d 343, 30 (5th Cir. 1999); U.S. v. Perry, 152 F.3d 900, 903 (8th Cir. 1998); U.S. v. Jones, 159 F.3d 969, 977 (6th Cir. 1998).
414.
U.S. v. Armstrong, 517 U.S. 456, 480 (1996).
415.
U.S. v. Serafino, 281 F.3d 327, 331 (1st Cir. 2002); U.S. v. Parham, 16 F.3d 844 (8th Cir. 1994); U.S. v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981).
416.
Oyler v. Boles, 368 U.S. 448, 456 (1962).
417.
FRCrP 12(b).
418.
U.S. v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).
419.
U.S. v. Falk, 479 F.2d 616, 624 (7th Cir. 1973).
420.
On the cross-examination of the prosecutor, see Gershman (2007–2008), Section 4:31.
421.
Gershman (2007–2008), Section 4:32.
422.
U.S. v. Armstrong, 517 U.S. 456, 469 (1996). Before Armstrong, different tests have been adopted to determine the standard of the initial showing to warrant an evidentiary hearing. The defendant may be required (1) to show “facts sufficient to raise a reasonable doubt”, (2) to establish “a colorable basis”, or (3) to constitute “a prima facie case” (see U.S. v. Armstrong, 468).
423.
U.S. v. Armstrong, 470.
424.
Due Process is guaranteed by the 5th and the 14th Amendment.
425.
North Carolina v. Pearce, 395 U.S. 711 (1969); Colten v. Kentucky, 407 U.S. 104 (1972); Chaffin v. Stynchcombe, 412 U.S. 17 (1973); Blackledge v. Perry, 417 U.S. 21 (1974).
426.
Gershman (2007–2008), Section 4:33; Lawless (2008), Section 3.33.
427.
North Carolina v. Pearce, 395 U.S. 711 (1969).
428.
It is not completely clear if Pearce was sentenced both times by the same judge (see Schwartz 1983, p. 129, n 21).
429.
North Carolina v. Pearce, 713.
430.
North Carolina v. Pearce, 725.
431.
North Carolina v. Pearce, 726.
432.
Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).
433.
Blackledge v. Perry, 27.
434.
Blackledge v. Perry, 27.
435.
Bordenkircher v. Hayes, 434 U.S. 357 (1978).
436.
Bordenkircher v. Hayes, 358–359.
437.
Bordenkircher v. Hayes, 363.
438.
Bordenkircher v. Hayes, 360.
439.
U.S. v. Goodwin, 457 U.S. 368 (1982).
440.
U.S. v. Goodwin, 381.
441.
U.S. v. Goodwin, 381.
442.
U.S. v. Goodwin, 381.
443.
Henning (1999a), pp. 742–743.
444.
See Gershman (2007–2008), Section 4:42, Note (2001), pp. 2078–2080.
445.
See, e.g., FRCrP 12(b).
446.
On both tests, see Krimmel (1994), pp. 22–25.
447.
See, e.g., U.S. v. Shaw, 655 F.2d 168, 171 (9th Cir. 1981); U.S. v. Jamison, 505 F.2d 407 (D.C. Cir. 1974); Wilson v. State, 633 S.W.2d 952 (Tex. App. El Paso 1982). See Gershman (2007–2008), Section 4:64; Lawless (2008), Section 3.34.
448.
See, e.g. U.S. v. Johnson, 171 F.3d 139 (2d Cir. 1999); U.S. v. Shaw, 655 F.2d 168, 171 (9th Cir. 1981); Gershman (2007–2008), Section 4:64.
449.
Krimmel (1994), pp. 22–23. On the advantages of such a test, see LaFave et al. (2007), Section 13.7 (c).
450.
U.S. v. Andrews, 633 F.2d 449 (6th Cir. 1980).
451.
Gershman (2007–2008), Section 4:66.
452.
U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir. 1980).
453.
Gershman (2007–2008), Section 4:60; Lawless (2008), Section 3.35.
454.
See Sects. 5.3.7.1 and 5.3.7.2.
455.
Such waiver includes the privilege against self-incrimination, right to trial by jury, and right to confront one’s accusers (see Gershman 2007–2008, Section 7:13). Some constitutional rights are not waived, such as the right to effective assistance of counsel, the right to be tried in a court with proper jurisdiction, the right to conflict-free representation, the right to nonracially discriminatory sentencing, the right not to be subject to a statutorily excessive sentence, the right against double jeopardy (see Singer 2008, p. 141).
456.
See ABA Model Rules of Professional Conduct, R. 3-1–3.9 (2010); ABA Prosecution Standards 3-4.1–3-4.2 (3rd edn 1993); ABA Pleas of Guilty Standard 14-3.1 (3rd edn 1999); NDAA Standards 66.1–71.1 (3rd edn 2009); USAM, Section 9-27.330–9-27.641 (1997); FRCrP 11.
457.
See e.g. ABA Prosecution Standard 3-4.1.
458.
Gershman (2007–2008), Section 7:3.
459.
Gershman (2007–2008), Section 7:4.
460.
See e.g. ABA Prosecution Standard 3-4.1 (b); ABA Pleas of Guilty Standard 14-3.1.
461.
ABA Model Rules of Professional Conduct, R. 3.8; see also Gershman (2007–2008), Section 7:19; Lawless (2008), Section 6:06.
462.
Gershman (2007–2008), Section 7:20–7:24. “Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary” [U.S. v. Bell, 506 F.2d 207, 222 (D.C. Cir. 1974), quoting Walters v. City of St. Louis, Mo., 347 U.S. 231 (1954)].
463.
Gershman (2007–2008), Section 7:17.
464.
See e.g. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
465.
See e.g., McClure v. Boles, 233 F. Supp. 928 (N.D.W.Va. 1964); State v. Sather, 172 Mont. 428, 564 P.2d 1306 (1977).
466.
Gershman (2007–2008), Section 7:7. Brady v. U.S., 397 U.S. 742 (1970); Jeffers v. Lewis, 38 F.3d 411 (9th Cir. 1994).
467.
Gershman (2007–2008), Section 7:12; U.S. v. Williams, 47 F.3d 658 (4th Cir. 1995).
468.
Gershman (2007–2008), Section 7:18. See, e.g. Brady v. U.S., 397 U.S. 742 (1970); Parker v. North Carolina, 397 U.S. 790 (1970); North Carolina v. Alford, 400 U.S. 25 (1970).
469.
On the various ways a prosecutor may breach the bargain, see Gershman (2007–2008), Section 7:30–7:36.
470.
See e.g. FRCrP 32(e); ABA Pleas of Guilty Standard 14-2.
471.
In Santobello v. New York [404 U.S. 257 (1971)], a seminal case, the court left the choice of remedies for a prosecutor’s breach of a plea agreement to the lower court. As a consequence, various policies have emerged. See Gershman (2007–2008), Section 7:27–7:29; Lawless (2008), Section 6.14-22; Singer (2008), p. 144.
472.
Gershman (2007–2008), Section 7:37; Lawless (2008), Section 6:15 and 6:20.
473.
On the grand jury, see also Sect. 5.5.1.3.2.2.
474.
See e.g. Leipold (1995).
475.
U.S. v. Dionisio, 410 U.S. 1, 23 (1973) (Douglas, J., dissenting).
476.
USAM, Section 9-11.010 (1997).
477.
Lawless (2008), Section 2.21.
478.
On the secrecy of grand jury proceedings, see LaFave et al. (2007), Section 8.5; Singer (2008), pp. 58–59.
479.
FRCrP 6(d).
480.
Gershman (2007–2008), Section 2:2.
481.
Gershman (2007–2008), Section 2:1.
482.
See e.g. U.S. v. Costello, 350 U.S. 359 (1966).
483.
For a detailed discussion on prosecutorial misconduct in grand jury, see Gershman (2007–2008), Chap. 2; Lawless (2008), Chap. 2.
484.
ABA Prosecution Standard 3-3.5 (b).
485.
U.S. v. Serubo, 604 F.2d 807 (3d Cir. 1979).
486.
U.S. v. DiGregorio, 605 F.2d 1184 (1st Cir. 1979). See also Gershman (2007–2008), Section 2:3.
487.
ABA Prosecution Standard 3-3.5 (a).
488.
For examples of illegitimate comments, see Gershman (2007–2008), Section 2:4.
489.
Gershman (2007–2008), Section 2:5.
490.
Gershman (2007–2008), Section 2:6.
491.
LaFave et al. (2007), Section 15.7 (b). On the prosecutor’s dual role, see Sect. 5.4.3.1.
492.
LaFave et al. (2007), Section 15.7 (b).
493.
Singer (2008), pp. 60–61.
494.
Gershman (2007–2008), Section 2:10.
495.
Gershman (2007–2008), Section 2:10.
496.
USAM, Section 9-11.151 (1997).
497.
Gershman (2007–2008), Section 2:11.
498.
Gershman (2007–2008), Section 2:12.
499.
For the federal immunity statute, see 18 USC Section 6002 and 6003.
500.
U.S. v. Kilpatrick, 594 F. Supp. 1324, 1336 (D. Colo. 1984).
501.
See Gershman (2007–2008), Section 2:13; Lawless (2008), Section 2.28.
502.
Singer (2008), pp. 60–61; Lawless (2008), Section 2.28.
503.
Gershman (2007–2008), Section 2:15.
504.
Gershman (2007–2008), Section 2:17.
505.
Gershman (2007–2008), Section 2:18.
506.
Gershman (2007–2008), Section 2:19.
507.
LaFave et al. (2007), Section 15.7 (b).
508.
U.S. v. Dionisio, 410 U.S. 1 (1973). On the history of the Grand Jury, see Sect. 5.5.1.3.2.2, para 2.
509.
See U.S. v. Calandra, 414 U.S. 338, 343–344 (1974).
510.
On the feasibility and desirability of an obligation of the prosecutor to present exculpatory evidence to the grand jury, see Note (1977).
511.
U.S. v. Mandel, 415 F. Supp. 1033 (D. Md. 1976).
512.
USAM, Section 9.11.223 (1997).
513.
ABA Prosecution Standard 3-3.6 (b).
514.
See LaFave et al. (2007), Section 15.7 (f).
515.
U.S. v. Williams, 504 U.S. 36, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (1992).
516.
On this doctrine, see e.g. Gershman (2007–2008), Chap. 5.
517.
U.S. v. Williams, 504 U.S. 36, 37 (1992).
518.
Costello v. U.S., 350 U.S. 359 (1956).
519.
Costello v. U.S., 362–363. See also LaFave et al. (2007), Section 15.5 (a).
520.
U.S. v. Estepa, 471 F.2d 1132 (2d Cir. 1972).
521.
U.S. v. Estepa, 1136.
522.
LaFave et al. (2007), Section 15.5 (a).
523.
Gershman (2007–2008), Section 2:44.
524.
See e.g. U.S. v. Procter & Gamble Company, 356 U.S. 677 (1958).
525.
See e.g. FRCrP 6(d).
526.
U.S. v. Mechanik, 475 U.S. 66 (1986).
527.
U.S. v. Mechanik; Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988).
528.
LaFave et al. (2007), Section 15.7 (h).
529.
Gershman (2007–2008), Section 2:53–2:57.
530.
Supervisory power is a court’s power to supervise the administration of justice by establishing and maintaining standards of procedure and evidence [see McNabb v. U.S., 318 U.S. 332, 340 (1943)].
531.
Gershman (2007–2008), Section 2:53; Lawless (2008), Section 2.21.
532.
Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988).
533.
U.S. v. Williams, 504 U.S. 36 (1992).
534.
Bank of Nova Scotia v. U.S., 251.
535.
U.S. v. Williams, 47.
536.
Gershman (2007–2008), Section 2:56.
537.
“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate” (ABA Model Rules of Professional Conduct, R. 3.8 cmt. 1 (2010)). For a detailed discussion on the dual role, see Fisher (1988), pp. 9–23.
538.
In this position, the public prosecutor is confronted with pressures that the defense attorney not faces. For a discussion, see Jonakait (1987), pp. 550–556. Dissenting opinion, Green (1988).
539.
As advocate, the prosecutor tries to “maximize both the number of convictions and the severity of the sentences that are imposed after conviction” (Alschuler 1968, p. 52).
540.
ABA Prosecution Standard 3-3.9 cmt (3rd edn 1993). In addition, the prosecutor may also be seen as an “administrator of justice”. He is the one who will decide whether to bring charges, and if so, what charges to bring against the accused, whether to prosecute or dismiss charges (American Bar Association, 5). In this function he manages limited resources (see Fisher 1988, p. 14).
541.
ABA Model Code of Professional Responsibility, EC 7-13 (1983); ABA Prosecutorial Investigations Standard 1.2 (a) (2008). See also NDAA Standards 1-1.1 (3rd edn 2009). In Berger v. U.S. (1935), Justice Sutherland delivered the prosecutor’s duty of fairness: “The U.S. Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one” [Berger v. U.S., 295 U.S. 78, 79 (1935)]. On the Berger doctrine, see Singer (1968), pp. 229–230.
542.
The “surrogate client” model (the prosecutor has no individual client, but instead has to decide which decision is in the best interest of the public. Because the public is neutral, the prosecutor will act in his quasi-judicial role when making the charging decision) and the “adversary stage” theory (depending on the task the prosecutor fulfils, he will act either as minister of justice or lawyer) attempt to clarify the prosecutor’s dual role. Both suggest that the quasi-judicial role applies only to certain prosecutorial tasks. In general, in stages that lack the adversary system’s safeguards against abuse, the prosecutor’s role as minister of justice is most appropriate. However, both models fail (see Fisher 1988, pp. 15–17).
543.
“He is torn between his image as a powerful, callous attorney and a crusader for justice” (Felkenes 1975, p. 118). “The anomie resulting from this conflict may cause the prosecutor to ignore his quasi-judicial role, or he may play this role only in making the initial decision to charge. If he is forced to choose only one of the roles, it is likely that he will choose the advocate role because … the criterion by which his efficiency is judged is quite likely to be his conviction record” (Felkenes 1975, p. 119).
544.
For a discussion about the prosecutor’s dual role see Fisher (1988), pp. 9–23. See also Pollock (2010), pp. 271–273.
545.
On the “conviction psychology”, see Felkenes (1975), pp. 110–112.
546.
Medwed (2009), p. 46.
547.
Note (1959). ABA Standards on Prosecutorial Investigations provide some guidance about the way prosecutors should react to political pressure (Standard. 3.6).
548.
Pollock (2010), p. 261; Note (1959), p. 483.
549.
On the problem with the adversary system, see Lawless (2008), Section 1.06.
550.
See Gordon and Huber (2002), p. 335.
551.
Note (1959), p. 483.
552.
On the selection of assistant district attorneys, see Sect. 5.1.2.2.2.
553.
Singer (1968), pp. 227–228; Felkenes (1975), pp. 111–112.
554.
For a discussion on the ineffectiveness of available sanctions, see Sect. 5.4.5.
555.
Hobbs (1949).
556.
Singer (1968), p. 228.
557.
See Jost (2007), p. 943.
558.
“[A]cts of misconduct by prosecutors are recurrent, pervasive, and very serious. Case reports do not adequately describe the extent of such misconduct because so much of the prosecutor’s work is conducted secretly and without supervision. One example is the suppression of evidence. Only when information is subsequently revealed can the prosecutor be charged with misconduct” (Gershman 2007–2008, p. vi).
559.
Jonakait (1987), p. 563; Diepraam (2006), p. 776; Terzano et al. (2009), p. 2.
560.
Armstrong and Possley (1999).
561.
Therefore, it must be kept in mind that the Center’s findings of “prosecutorial misconduct” are not complete. Legal databases like Lexis and Westlaw contain only published opinions.
562.
The Center for Public Integrity (2011a).
563.
Gordon (2011a).
564.
Gordon (2011b).
565.
The Center for Public Integrity (2011b).
566.
http://projects.publicintegrity.org/pm/states.aspx?st=MN (accessed October 10, 2011).
567.
Ridolfi and Possley (2010), p. 10.
568.
Ridolfi and Possley (2010), p. 10.
569.
Ridolfi and Possley (2010), pp. 38–40.
570.
“The harmless category is defined as cases where misconduct was found, but the courts nevertheless upheld the convictions, ruling that the misconduct did not alter the fundamental fairness of the trial” (Ridolfi and Possley 2010, p. 13).
571.
“The harmful error category is defined as cases where misconduct was found and where the finding resulted in courts setting aside convictions or sentences, declaring mistrials or barring evidence” (Ridolfi and Possley 2010, p. 13).
572.
In 548 of the 707 cases the misconduct was found to be harmless. In only 159 of the 707 cases the misconduct was found to be harmful (Ridolfi and Possley 2010, p. 12).
573.
Ridolfi and Possley (2010), pp. 24–38.
574.
Ridolfi and Possley (2010), p. 57.
575.
See Sect. 5.3.7.1, para 1.
576.
See declaration made by Katherine Goldwasser to the Center for Public Integrity and reproduced in the article of Weinberg (2011).
577.
Jost (2007), p. 943; Gershman (1986), p. 138; Kirchmeier et al. (2010), p. 1370. On the “harmless doctrine”, see Sect. 5.4.5.3.
578.
See Gershman (2007–2008), Section 14:2.
579.
See Gershman (2007–2008), Section 14:9; Lawless (2008), Section 13.38.
580.
See Gershman (2007–2008), Section 14:11; Lawless (2008), Section 13.33–13.37.
581.
See Gershman (2007–2008), Section 14:10.
582.
See Gershman (2007–2008), Section 14:12.
583.
Lawless (2008), Section 13:02.
584.
The prosecutor enjoys absolute immunity for advocacy activities and qualified immunity for investigative or administrative activities (see Gershman 2007–2008, Section 14:14–14:20; see also Lawless 2008, Section 13.03–13.12).
585.
See Gershman (2007–2008), Section 14:13.
586.
On these studies, see Sects. 5.4.4.2 and 5.4.4.3.
587.
The Center for Public Integrity (2011a); Ridolfi and Possley (2010), p. 13.
588.
Armstrong and Possley (1999).
589.
Armstrong and Possley (1999).
590.
For the methodology of this research, see Sect. 5.4.4.2, para 3.
591.
Such misconduct include for example: discovery violations; improper contact with witnesses, defendants, judges or jurors; improper behavior during hearings or trials; prosecuting cases not supported by probable cause; using improper, false or misleading evidence.
592.
Gordon (2011b).
593.
Ridolfi and Possley (2010), pp. 54–61.
594.
Ridolfi and Possley (2010), p. 57.
595.
The harmless error rule is currently codified at 28 USC Section 2111 and at FRCrP 52(a) which states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” All 50 States have harmless error statutes or rules. In Minnesota, the harmless error rule is rooted in Rule 31.01 of the Minnesota Rules of Criminal Procedure which states: “Any error that does not affect substantial rights must be disregarded.” For more details about the harmless error rule, see Cooper (2002); Landes and Posner (2001); Mitchell (1994).
596.
Chapman v. California, 386 U.S. 18, 22 (1967).
597.
Chapman v. California, 23–24.
598.
See e.g., Hovis v. State, 455 N.E.2.d 577, 583 (Ind. 1983).
599.
Gershman (2007–2008), Section 14:5.
600.
Terzano et al. (2009), p. 11; see also Ridolfi and Possley (2010), pp. 18–24.
601.
On the structure and organization of the U.S. prosecution service, see Sect. 5.1.1.
602.
Gramckow (2008), p. 396.
603.
On the Executive Office for U.S. Attorneys, see Sect. 5.1.1.2.
604.
28 CFR Section 022.
605.
Gramckow (2008), p. 396.
606.
USAM, Section 9-10.040 (1997).
607.
USAM, Section 8-3.140.
608.
USAM, Section 6-4.210.
609.
USAM, Section 9-2.001.
610.
Gramckow (2008), p. 396.
611.
Gramckow (2008), p. 397.
612.
USAM, Section 3-16.110.
613.
USAM, Section 3-16.120.
614.
U.S. Department of Justice (2008), pp. 9–10.
615.
See Sect. 5.5.2.5.
616.
On the organization of the prosecution service at state level, see Sect. 5.1.2.
617.
Gramckow (2008), p. 393.
618.
Gramckow (2008), p. 393.
619.
Gramckow (2008), p. 394.
620.
Gramckow (2008), p. 395.
621.
Gramckow (2008), p. 394.
622.
The Hennepin County Attorney’s Office for instance provides the community with information on cases that are high profile cases or have generated community interest. In addition, information about a specific case can be found by using the public version of Minnesota Court Information System; see http://www.hennepinattorney.org/CaseInformation.aspx (accessed June 25, 2012).
623.
Gramckow (2008), pp. 393 and 401.
624.
Gramckow (2008), p. 400.
625.
Gramckow (2008), p. 398.
626.
E.g. meetings take place once every week at the District Attorney’s Office of Anoka County.
627.
Gramckow (2008), p. 398.
628.
On the impact such a decision may have, see Sect. 5.3.3, para 2; Sect. 5.3.4.1, para 1.
629.
Gramckow (2008), p. 398.
630.
See for instance the different units within the criminal division of the Hennepin County Attorney’s Office, http://www.hennepinattorney.org/Divisions/CriminalDivision.aspx (accessed June 25, 2012).
631.
Gramckow (2008), pp. 398–399.
632.
On plea bargaining, see Sect. 5.3.7.
633.
On the problematic practice of plea bargaining in the U.S. system, see Sects. 5.3.7.2 and 5.3.7.3.
634.
See Vorenberg (1981), pp. 1537–1538; Gifford (1981), p. 670.
635.
Del Carmen (2007), pp. 41–43; LaFave et al. (2007), Section 14.1 (a).
636.
Weaver et al. (2008), p. 300.
637.
Halsted (1987), p. 112.
638.
LaFave et al. (2007), Section 14.4 (a).
639.
LaFave et al. (2007), Section 14.4 (c).
640.
LaFave et al. (2007), Section 14.4 (b).
641.
Thies v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922).
642.
Singer (2008), p. 74.
643.
LaFave et al. (2007), Section 14.1 (a); Singer (2008), p. 74.
644.
LaFave et al. (2007), Section 14.1 (a).
645.
Weaver et al. (2008), p. 297; Singer (2008), p. 74.
646.
Singer (2008), p. 74.
647.
Singer (2008), p. 74.
648.
Halsted (1987), p. 103.
649.
For a review of the history of the grand jury, see Helmholz (1983); see also Kuh (1955), pp. 1103–1109; Schwartz (1972); Toomey (1963); Zwerling (1976), pp. 1263–1269. See also LaFave et al. (2007), Section 8.2.
650.
Originally, these groups were composed of 12 laymen. The switch to 23 laymen has been traced back to the reign of Edward III in 1368 (see Morse 1931, pp. 115–116; Shannon 1972, p. 143). Today in the United States of America, the number of grand jurors varies from 12 to 23 and varies from jurisdiction to jurisdiction (see Spain 1964, pp. 122 and 126–142).
651.
Johnston (1974), p. 157; Kuh (1955), p. 1106.
652.
Kuh (1955), pp. 1106–1107; Schwartz (1972), p. 710.
653.
Kuh (1955), p. 1107.
654.
Calkins (1965), p. 457; LaFave et al. (2007), Section 8.2 (a).
655.
The Colledge’s case and the Earl of Shaftesbury’s case—both decided in 1681—were the first two cases where the grand jury refused to indict (see Howell 1816, pp. 550–724 and 759–835). For a discussion of both cases, see Schwartz (1972), pp. 710–721.
656.
Johnston (1974), p. 158.
657.
Toomey (1963), p. 959.
658.
Johnston (1974), p. 158; LaFave et al. (2007), Section 8.2 (b).
659.
Zwerling (1976), p. 1266.
660.
Johnston (1974), p. 158.
661.
LaFave et al. (2007), Section 15.1 (d).
662.
LaFave et al. (2007), Section 15.1 (g). It has been held that the fifth amendment provision for indictment by grand jury is not incorporated in the 14th amendment and hence does not apply to the states so that they remain free to prosecute felonies by procedures other than indictment [Hurtado v. California, 110 U.S. 516, 538 (1884)].
663.
Bernstein (1994), p. 575.
664.
U.S. v. Dionisio, 410 U.S. 1 (1973).
665.
U.S. v. Dionisio, 17.
666.
For a complete discussion about the effectiveness of the grand jury in the screening, see Leipold (1995).
667.
Gilboy (1984), p. 5; Aragon (1981), p. 97; Cassidy (2000), p. 362; Henning (1999b), pp. 3–4; Leipold (1995), p. 267.
668.
Halsted (1987), p. 114. For a comparison between preliminary hearing and grand jury, see Singer (2008), p. 76.
669.
Brice (1972), p. 765; Johnston (1974), p. 160.
670.
U.S. v. Williams, 504 U.S. 36 (1992).
671.
U.S. v. Williams, 48.
672.
Leipold (1995), p. 269.
673.
Coates (1962).
674.
For possible explanations between both views, see Leipold (1995), pp. 272–274.
675.
LaFave et al. (2007), Section 15.3 (b).
676.
Scolnic (1999), p. 1; Beall (1998), p. 631.
677.
See e.g. Cassidy (2000), p. 363; Arenella (1980), p. 539; Henning (1999b), p. 5.
678.
Leipold (1995), p. 276; Johnston (1974), p. 168.
679.
Leipold (1995), p. 276.
680.
Leipold (1995), p. 278.
681.
Henning (1999b), p. 6.
682.
Leipold (1995), pp. 294–304. See also LaFave et al. (2007), Section 8.2 (c).
683.
Singer (2008), p. 67.
684.
LaFave et al. (2007), Section 15.1 (g).
685.
Leipold (1995), pp. 314–323.
686.
Bubany and Skillern (1976), pp. 484–485.
687.
U.S. v. Nixon, 418 U.S. 683 (1974).
688.
U.S. v. Nixon, 693.
689.
For the situation in Switzerland and Germany, see Sects. 6.3, 7.3.2, and 7.3.3.
690.
State v. Johnson, 74 Wis. 2d 169, 172, 246 N.W.2d 503, 506 (1976); Pugach v. Klein, 193 F. Supp. 630, 634–635 (S.D.N.Y. 1961); U.S. v. Brokaw, 60 F. Supp. 100, 101 (S.D. III. 1945); State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 373, 166 N.W.2d 255, 260 (1969).
691.
Newman v. U.S., 382 F.2d 479 (D.C. Cir. 1967).
692.
See Sect. 3.1.2.5.
693.
Gramckow (2008), p. 401.
694.
This civil action is commonly referred as a § 1983 action.
695.
Gershman (2007–2008), Section 14:13.
696.
Gershman (2007–2008), Section 14:13.
697.
Imbler v. Pachtman, 424 U.S. 409 (1976).
698.
Imbler v. Pachtman, 430.
699.
Imbler v. Pachtman, 431.
700.
Imbler v. Pachtman, 430-31, n 33.
701.
Gershman (2007–2008), Section 14:14.
702.
See e.g. Burns v. Reed, 500 U.S. 478 (1991).
703.
See e.g. Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995).
704.
See e.g. Anderson v. Simon, 217 F.3d 472 (7th Cir. 2000).
705.
See e.g. Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999).
706.
See e.g. Kalina v. Fletcher, 522 U.S. 118 (1997).
707.
See e.g. Ryland v. Shapiro, 586 F. Supp. 1495 (1984).
708.
See e.g. Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981).
709.
See e.g. Lyles v. Sparks, 79 F.3d 372 (4th Cir. 1996).
710.
See e.g. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979).
711.
See e.g. McSurely v. McClellan, 697 F.2d 309, 67 A.L.R. Fed. 614 (D.C. Cir. 1982).
712.
See e.g. Mitchell v. Forsyth, 472 U.S. 511 (1985).
713.
See e.g. Tomko v. Lees, 416 F. Supp. 1137 (W.D. Pa. 1976).
714.
See e.g. Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980).
715.
See e.g. Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
716.
Section 636 of the FY 2000 Treasury, Postal Service and General Government Appropriation Act.
717.
Federal prosecutors have to comply with the rules of professional conduct for the state(s) in which they practice [28 USC Section 530B. See also 28 CFR Part 77 (Ethical Standards for Attorneys for the Government), which serves the purpose of implementing 28 USC Section 530B and providing guidance to attorneys concerning the requirements imposed on Department of Justice attorneys by 28 USC Section 530B].
718.
With the Principles of Federal Prosecution, the U.S. Department of Justice has developed its own guidelines to assist federal prosecutors in the performance of their duties and to set uniform policy on certain matters (on the Principles of Federal Prosecution, see Sect. 5.3.4.2.1.1). Furthermore, the Departmental Ethics Office, located in the Justice Management Division, is responsible for administering a Department of Justice-wide ethics program and for implementing Department of Justice-wide policies on ethics issues. The office provides advice and training and supervises the ethics programs of the U.S. attorney’s offices. Each U.S. attorney’s office has a Deputy Designated Agency Ethics Official (DDAEO) who is responsible for administering the ethics program within the office. The Department of Justice follows the government-wide standards of conduct promulgated by the Office of Government Ethics (OGE) at 5 CFR Chapter XVI, especially Parts 2634, 2635, 2636, and 2637; and Department of Justice Order 1200.1 [see USAM, Section 1-4.010 (1997)]. For a detailed discussion about the bewildering array of ethical regulations federal prosecutors are subject to, see Tennis (2010). See also Green (1995).
719.
On the possibility of state bar associations to discipline federal prosecutors, see Blair (2001).
720.
Tennis (2010), p. 172; Green (1995), pp. 79 and 86–87.
721.
USAM, Section 1-4.100 B.
722.
USAM, Section 1-4.100 A.
723.
USAM, Section 1-4.100.
724.
USAM, Section 1-4.140.
725.
USAM, Section 3-4.752.
726.
USAM, Section 3-4.752. See also Human Resources Order DOJ 1200.1, Chap. 3-1, Discipline and Adverse Actions.
727.
USAM, Section 3-4.771. See also Human Resources Order DOJ 1200.1, Chap. 3-2, Agency Grievance Procedure.
728.
U.S. Department of Justice (2008), p. 23.
729.
Gramckow (2008), p. 395.
730.
For an overview of the competent authority to receive grievances against attorneys in the states, see http://grievanceproject.wordpress.com/state-grievance-procedures/ (accessed June 25, 2012). In the state of Minnesota, the Minnesota Lawyers Professional Responsibility Board & Office of Lawyers Professional Responsibility is responsible for investigating complaints of attorney misconduct and prescribing appropriate discipline.
731.
See e.g. Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR) of the state of Minnesota.
732.
See e.g. In re Nathanson, 2012 WL 638014, _ N.W.2d _ (Minn. Sup. Ct. Feb. 29, 2012) (per curiam).
733.
In re Nathanson, 11.
734.
The appellate authority may differ between the states. The decision may be reviewed by the State Supreme Court (e.g. State of Michigan, State of Missouri), the Bar Counsel (e.g. State of Virginia), a board member of the Grievance Commission (e.g. State of Minnesota) or by a panel (e.g. State of Idaho).
735.
Gramckow (2008), pp. 395–396.
736.
Gramckow (2008), p. 396.
737.
Gramckow (2008), p. 399.
738.
Gramckow (2008), p. 400.
739.
Gramckow (2008), p. 400.
740.
Where assistant district attorneys are part of the state’s civil service system, a termination of work is usually not possible. This limitation, however, does not apply if an assistant repeatedly refuses to follow the prosecution policies or to direct orders from the district attorney.
741.
See Sects. 5.4.5.1 and 5.4.5.2.
742.
For Switzerland, see Sect. 6.6.2.2, para 6, for Germany, see Sect. 7.6.2.2 and for France, see Sect. 8.5.2.2.
743.
Wright and Miller (2010), p. 1595.
744.
“The definition of crimes and defenses…empower[s] prosecutors, who are the criminal justice system’s real lawmakers. Anyone who reads criminal codes in search of a picture of what conduct leads to a prison term…will be seriously misled” (Stuntz 2007, pp. 506–507).
745.
Wright (2009), pp. 585–586.
746.
Wright and Miller (2010), p. 1605.
747.
Wright (2009), p. 586; Davis (2007), pp. 169–170; Gramckow (2008), pp. 405–407.
748.
Perry (2006), p. 4.
749.
Perry (2006), p. 4.
750.
Wright and Miller (2010), p. 1608.
751.
Gramckow (2008), p. 407; Wright and Miller (2010), p. 1608.
752.
Gramckow (2008), p. 407; Wright (2009), p. 586.
753.
See Jacoby et al. (1992).
754.
See Levine (2005), pp. 1132–1144.
755.
Gramckow (2008), p. 405.
756.
Wright (2009), p. 586.
757.
Davis (2007), p. 170. More about the electoral process under Sect. 5.5.2.5.
758.
On this issue, see Sect. 5.3.7.2.
759.
Wright (2009), p. 587.
760.
See Sect. 5.1.2.2.1 and Appendix IV.
761.
Davis (2007), pp. 166–169; Gold (2011), pp. 78–79. See also Gordon and Huber (2002), pp. 336–338.
762.
Newspapers and magazines covering contested elections involving incumbent prosecutors in selected jurisdictions have been analyzed; for the methodology, see Wright (2009), pp. 597–600.
763.
Wright (2009), pp. 600–602.
764.
Wright (2009), p. 602.
765.
See e.g. Gordon and Huber (2002), p. 335; Medwed (2004), pp. 132–137; Ramseyer et al. (2008).
766.
Wright (2009), pp. 603–604.
767.
Dyke (2007).
768.
Wright (2009), p. 605.
769.
See e.g. Gold (2011), pp. 79–83.
770.
Perry (2006), p. 3.
771.
Wright (2009), p. 592 and 595, Table 1.
772.
Wright (2009), p. 592 and 595, Table 1.
773.
Wright (2009), pp. 595–596.
774.
For possible responses to these failures of the electoral process, see e.g. Wright (2009), pp. 606–610; Gold (2011), pp. 75–91; Bibas (2009), pp. 983–991.

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Rechtswissenschaftliche Fakultät, Universitäre Fernstudien Schweiz, Brig, Switzerland
Gwladys Gilliéron

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Gilliéron, G. (2014). Public Prosecutors in the United States: Position, Powers, and Accountability. In: Public Prosecutors in the United States and Europe. Springer, Cham. https://doi.org/10.1007/978-3-319-04504-7_5

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DOI: https://doi.org/10.1007/978-3-319-04504-7_5
Published: 06 February 2014
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