W3CP11

1. 1. LEARNING OBJECTIVES

When you complete this chapter, you should be able to:

• ❶ Describe the prosecutor’s role, prosecutor’s discretion, and the issues surrounding prosecutorial misconduct.

• ❷ Explain the concept of joinder and reasons for it.

• ❸ Explain the purpose, functions, and powers of a grand jury.

• ❹ Outline the development of the right to counsel.

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      UTLINE

INTRODUCTION: BRINGING CHARGES AND MOUNTING A DEFENSE 310

THE PROSECUTOR 310

• The Charging Decision 310

  • Deciding Not to Prosecute 310

  • Challenging the Decision Not to Prosecute 312

• Restrictions on Bringing Charges 315

  • Selective Prosecution 315

  • Vindictive Prosecution 317

• Dealing with Overzealous Prosecutors 319

  • Recourse 319

• Joinder 320

  • Multiple Charges against the Same Individual 320

  • Charges against Multiple Defendants 321

THE GRAND JURY 321

• How a Grand Jury Is Constructed 322

  • Duration 323

  • Size 323

  • Voting Requirements 324

  • Selection of Members 324

• Secrecy of Grand Jury Proceedings 327

  • Disclosure of Witness Testimony to the Defense 327

  • Disclosure of Witness Testimony to Other Parties 328

• Rights of Witnesses Testifying before Grand Juries 328

  • Right to Testify 328

  • Being Advised of the Right Not to Testify 328

  • Right to Counsel 328

• Investigative Powers of the Grand Jury 329

  • Subpoenas 329

  • Grants of Immunity 330

  • Findings of Contempt 330

• Challenging a Grand Jury Indictment 330

THE DEFENSE ATTORNEY 331

• The Right to Counsel in a Criminal Prosecution 332

  • Due Process Origins 332

  • The Contemporary Sixth Amendment Approach 333

• The Right to Counsel at Other Stages of the Criminal Process 333

  • The Sixth Amendment Approach 333

  • The Fifth Amendment Approach 334

  • The Due Process Approach 334

• Waiver of the Right to Counsel 334

• Indigent versus Nonindigent Defendants’ Right to Counsel of Their Choice 336

• Effective Assistance of Counsel 336

  • When the Right Applies 337

  • The Meaning of “Effective Assistance” 337

Summary 339

Key Terms 341

Key Cases 341

Further Exploration 342

Review Questions 342

Web Links and Exercises 343

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      ntroduction: Bringing Charges and Mounting a Defense

This chapter will focus on the roles of the prosecutor, grand jury, and defense attorney. It must be emphasized that all of these entities have an important role to play in the case even before the pretrial process begins. For example, the right to counsel attaches to varying degrees well before the pretrial process is set into motion. Similarly, when the services of the grand jury are required, it can perform an investigative function well before the arrest stage of the criminal process. Prosecutors, too, perform a great deal of work before the pretrial process.

1. 1. The Prosecutor

The prosecutor is the official given the task of charging criminal suspects in the name of the government and obtaining convictions of those responsible for violating the law. There are several types of prosecutors in the United States. U.S. attorneys are prosecutors in the federal criminal justice system. District attorneys, or state’s attorneys, are the elected chief prosecutors in state criminal justice systems. Most often, they are elected to head county offices. Below the district attorney are deputy district attorneys or assistant state’s attorneys who actually litigate most criminal cases in court. Attorneys general, whether state or federal, are the main legal advisor to the government in their jurisdictions. Their role is primarily one of legal advising, rather than prosecution. City attorneys are, with some exceptions, the chief legal advisors to city government officials. Most criminal prosecutions are handled at the county level, so this chapter’s discussion is focused primarily on district attorneys and state’s attorneys and their deputies.

Article II, Section 3, of the U.S. Constitution states that the executive branch of the federal government “shall take Care that the Laws be faithfully executed.” This constitutionally mandated duty to execute the law falls on prosecutors. Of course, police officers also execute the law, but prosecutors possess the authority to decide whether to bring formal charges against suspected criminals. As the Supreme Court noted in Bordenkircher v. Hayes, 434 U.S. 357 (1978), “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on his discretion.” Prosecutors do not have unlimited discretion, however. There are important restrictions on their decision to charge. Some of these limitations stem from the Constitution, while others stem from statutes and other sources.

1. 1. The Charging Decision

The prosecutor generally has the authority to decide whether to proceed with charges. This is known as prosecutorial discretion. He or she can elect not to charge for a number of reasons, even over strenuous objection by the victim or the person reporting the alleged crime. The prosecutor’s discretion also comes into play in the process of plea bargaining (discussed in Chapter 12) in which the defendant can accept a guilty plea for a lesser offense than the one charged. Finally, prosecutors sometimes must answer to authorities that mandate, or at least strongly encourage, prosecution of particular types of offenses. Figure 11.1 presents portions of a federal prosecutor’s charging document (also referred to in some jurisdictions as “information”).

1. 1. Deciding Not to Prosecute

The most obvious reason for deciding not to prosecute is lack of evidence. The prosecutor may determine that, based on the evidence presented by the police, the suspect is innocent. 

1. 1. FIGURE 11.1 Portions of a Federal Prosecutor’s Charging Document (Information)

Source: http://www.usdoj.gov/usao/iln/pr/chicago/2008/pr0619_01i.pdf (accessed November 7, 2008).

There are other reasons not to prosecute, other than lack of evidence. For example, even if the state’s case is strong, there may be an incentive not to prosecute. If it appears the defense’s case is stronger, then it may behoove the prosecutor to proceed with charges against a different individual.

Nonetheless, prosecutors are human and, as such, can be influenced by the facts of a particular case. Say, for instance, that a law mandates life in prison for growing in excess of 1,000 marijuana plants. Assume further that a suspect apprehended for violating such a 

1. 1. DECISION-MAKING EXERCISE 11.1 REASONS FOR NONPROSECUTION

Another controversial reason for nonprosecution is a by-product of the U.S. so-called war on drugs. Civil asset forfeiture statutes permit the forfeiture of money and property tied to criminal activity—most frequently, the illicit drug trade. Many asset forfeiture statutes permit forfeited proceeds to go to the executive branch, which usually means the police, but sometimes prosecutors. Some have argued that when there is not enough evidence to proceed with a criminal case, prosecutors can opt to pursue civil forfeiture, for which the burden of proof is generally lower. And as an added bonus, if a forfeiture action succeeds and a person’s property is forfeited to the state, then the prosecutor may reap a financial reward for selecting a civil proceeding instead of a criminal one. Is the possibility of civil asset forfeiture a legitimate reason not to prosecute? That is, if a prosecutor chooses not to press criminal charges against someone, instead opting for forfeiture, should the decision be considered constitutional?

Another reason for not charging is related to economic factors. It is not possible, given the limited resources that exist in most public agencies (including prosecutors’ offices), to proceed with charges against every suspect. Not having the time to build a case because of a high caseload may effectively force a prosecutor to be lenient with certain individuals.

1. 1. Challenging the Decision Not to Prosecute

A prosecutor’s decision to not press charges is rarely challenged, but on occasion, higher authorities may get involved when they disagree with a prosecutor’s decision. Failure to press charges can sometimes be questioned by a court, which can provide relief to individuals who wish to proceed with the case. Other times, a prosecutor’s supervisor or other high-ranking official may step in. According to one source, “Many states by statute confer upon the attorney general the power to initiate prosecution in cases where the local prosecutor has failed to act. In practice, however, attorneys general have seldom exercised much control over local prosecuting attorneys.”1

Another way of preventing prosecutors from failing to act or otherwise abusing their discretion is to require them to abide by standards of conduct. These standards provide rules for deciding which cases are worthy of prosecution, while ensuring that prosecutors act in accordance with the law. Figure 11.2 presents portions of the Code of Conduct for Judicial Employees, published by the Administrative Office of the U.S. Courts.

Some U.S. jurisdictions require court approval of a prosecutor’s decision not to pursue charges. The prosecutor is typically required to explain to the court in writing his or her reasons for failing to prosecute. While this approach may seem sensible on its face, the Supreme Court has been somewhat critical of judicial review of prosecutorial decisions. In Wayte v. United States, 470 U.S. 598 (1985), the Court stated that it refused to question a prosecutor’s discretion because “[s]uch factors as the strength of the case, the prosecution’s general deterrence value, the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make.”

In general, if the prosecutor’s decision not to press charges stems from legitimate factors, such as lack of evidence or case backlog, then the decision should be honored. This decision should be honored even if he or she agrees to dismiss criminal charges if the defendant agrees not to file a civil suit.

1Y. Kamisar, W. LaFave, and J. Israel, Modern Criminal Procedure, 9th ed. (St. Paul, MN: West, 1999), p. 894.

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      IGURE 11.2 Code of Conduct for Judicial Employees