Should i prosecute

While it is unusual for federal prosecutors to bring charges in state court under state law, it is not impossible so long as state governments give them permission to do so. Assigning police cases to federal prosecutors would go a long way toward resolving any conflict inherent in state prosecutions of police—these attorneys are generally not beholden to the local police, and federal prosecutors are insulated from the political pressures that might plague state actors.

They are a closer analogue to a local district attorney than the attorney general, at least in terms of the substantive crime they prosecute. If such a proposal were used by a state, the federal office for that jurisdiction could have a unit devoted to prosecuting local law enforcement and could hire and train lawyers to be familiar with the law and procedure of the state court.

Then, that federal investigatory and prosecutorial agency would have centralized knowledge over the complaints and prosecutions for local law enforcement. This could help the Civil Rights division of the Department of Justice figure out which police departments need further federal oversight. Such factors make the idea of federal prosecution of local law enforcement attractive, but in further considering such a proposal, several downsides emerge.

Unelected federal prosecutors are not answerable in any direct way to local communities. That said, proper training, and top-down incentives to become familiar with local communities could ameliorate this problem so long as the U.

The federal system is roiled by many of the same race and class problems that plague local criminal justice systems. Such drawbacks might lead a state government to be reluctant to cede police prosecutions to federal prosecutors.

But, particularly in states where local and state prosecutors have previously been charged with cronyism and self-dealing, bringing in less politically influenced actors might be a good solution. Should Outsiders Prosecute the Police?

A more radical solution would be to take prosecutors out of the investigation and prosecution of law enforcement altogether. This board would look something like the already-instituted civilian complaint review boards in several major cities, who are tasked with overseeing allegations of police misconduct. If the outsider board decided to bring charges against an officer, the court could appoint an attorney from a list of qualified, private lawyers as a special prosecutor.

These appointments and their compensation could be modeled on the federal Criminal Justice Act panels—lists of qualified lawyers who are appointed to represent indigent defendants when the federal defender office is unable to. The benefits to this roughly sketched outsider prosecution team are significant.

First, the conflict-of-interest and decision-making biases that plague all prosecutors to some extent would be nonexistent in such a committee. Like community policing and prosecution, such boards could ensure that prosecutors and police were more sensitive to the needs of the communities they served. Third, such boards could generate important data on which officers and which departments are most problematic.

Of course, this solution will be grist for much criticism. A likely critique is that an outsider prosecution solution will have the opposite, but not less severe, bias problem suffered by local district attorneys: they may be overzealous. This concern is more problematic in theory than in reality. To the extent that critics may be concerned that a civilian review board would be overzealous, ensuring that judges, former prosecutors, and former police officers are part of such a board should ameliorate these concerns.

Moreover, these boards and any appointed special prosecutor would be restricted by the amount of funding they had for cases and would have to make decisions about which cases to pursue based on budgetary limitations, much in the same way prosecutors already do.

Their oversight might even reduce the number of allegations against police. Finally, the substantive criminal law described above would continue to protect police from criminal charges resulting from potentially problematic but nonetheless legal activity. Another concern is that such boards would suffer the same fate as current civilian oversight committees—they would be gutted by lack of funding, particularly if they made decisions that rankled those in power.

Instituting outsider prosecutions and seeing the fruits of their work could well be a boon to ambitious or reform-minded politicians. Moreover, the fear that this solution may not succeed is no reason to discount it, particularly given the strikingly problematic status quo and the lack of any more perfect solutions. Police serve a critical role in the criminal justice system.

But when they commit crimes in the course of their duties, they must be held to the same standards as any person accused of criminal wrongdoing.

It is unfair to demand that local prosecutors, who work closely with the police and rely on them for professional and political advancement, investigate and prosecute law enforcement when they are accused of committing crimes. This notion is supported by the law and scholarship about conflicts of interest, a much-theorized area of law that has, heretofore, not been applied to local prosecutions of police.

This Article has shown how conflict-of-interest law can underpin the removal of local prosecutors from investigating and prosecuting the police. While police reform and public dialogue may help reduce the number of crimes committed by law enforcement, a more impartial and fair system of prosecution must be employed to ensure that those officers who act above the law are not treated so by the criminal justice system.

See Rachel E. See, e. In this sense, prosecutors consistently function as conviction maximizers even if they only rarely operate as sentence maximizers. See Exec. Order No. Daily News Dec. A plurality of Republicans, 48 percent, support the plan, compared to 23 percent who are against it. Times Apr. Post: Volokh Conspiracy Dec. Several scholars have written about problems prosecuting the police but none has analyzed these problems through the lens of conflict-of-interest law.

Jacobi, Prosecuting Police Misconduct , Wis. There has been a renewed call for federal prosecutors to take the lead in these prosecutions. See Sullivan v. Louisiana, U. See infra Part II. Because American prosecutors perform a quasi-judicial function, conflict-of-interest rulings regarding both judges and prosecutors are relevant to analyzing when prosecutors may have problematic conflicts.

Gershman, The New Prosecutors , 53 U. In criminal cases, the codes do not rely as fully on competitive lawyering. See Marshall v. Jerrico, Inc.

Marshall , U. Tierney, F. United States ex rel. Vuitton et Fils S. Adams, N. Heldt, F. Miller, F. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.

Rhodes, P. Burns v. Richards, S. Crepeault, A. Vasquez, P. Cherry, 83 P. Herrick, N. Camacho, S. See 28 U. Such rules and regulations may provide that a willful violation of any provision thereof shall result in removal from office. Attorneys and AUSAs to recuse themselves or, as necessary, their entire office ; see also Morrison v.

Olson, U. Hursey, P. State, N. Keenan v. Hatcher, S. Snyder, So. Schrager, 74 Misc. See Susan W. See infra Part III. Their motions were denied and their cases are in various stages of resolution. Leslie W. Legal Ethics 55, 56 looking at types of appearance of justice issues raised ; Amalia D. Sherrilyn A. Samaha, Regulation for the Sake of Appearance , Harv. Richard Delgado et al. Only when it is all but impossible to rectify bias should a potential lack of independence be tolerated. Health Servs.

Acquisition Corp. Amico, F. Such provisions seek to preserve the values embodied in the appearance of justice. They obligate judges to recuse themselves when their impartiality can be reasonably questioned, not only when it is rightly questioned.

McCotter, F. Alvarez v. Tracy, F. Legal Ethics 71, —51 A arguing that a prosecutor often functions like a judge in our modern criminal justice system and thus their appearance of impartiality, at least as to whom they are prosecuting, is essential. Schwarz and Mickens v. Taylor, 59 N.

Richard E. It was so for lawyers too. Massey Coal Co. A number of articles have critiqued the Court for ruling too narrowly in Caperton. White, Comment, Relinquished Responsibilities , Harv. There is also a robust scholarly discussion about defense attorney conflicts. Code Ann. Tigran W. Moore et al. This was clearly the case in Caperton where the West Virginia Supreme Court judge wrote several opinions explaining why he was able to remain impartial, despite the substantial contribution made by a party to litigation to his election campaign.

Caperton v. Laura E. The problem is complex because loyalty and gratitude pose a greater potential problem for some judges than for others. Many states have self-defense laws that apply specially to police. Moreover, it is even harder to meet the burden of proof under federal law. See 18 U. Tennessee v. Garner, U. Later, in Graham v. Connor, U. Agencies control investigative resources, but they are not free to retain separate counsel. In some states, a citizen can go to court and file a criminal complaint herself.

Sometimes they even decide whether to refer a case to federal or state prosecutors. See id. This is especially true of misdemeanors. The police can find as many instances of marijuana or drug possession, petit larceny, unlicensed vending, misdemeanor physical altercations, public alcohol consumption, turnstile jumping, prostitution, and disorderly conduct as they devote the time and resources to find.

See generally Terry v. Ohio, U. See generally Miranda v. Arizona, U. Mississippi, U. See generally Gideon v. Wainwright, U. But see Anthony C. Mike McConville et al. Legal Ethics , —55 noting that the plaintiffs in Floyd v. Wright, Prosecution in 3-D , J.

See Jennifer E. About half of the states require felonies to be presented to a grand jury; in the other half, and for most misdemeanors, a prosecutor can file charges without an indictment. Angela J. See Russell M. Davis L. Post Feb. United States v. Taylor, F. LeFevour, F. We have twice upheld the propriety of this practice Baines, No. One piece of evidence for this fairly obvious proposition is the frequency with which elected prosecutors cite conviction rates in their campaigns.

This political need is no doubt reinforced by a kind of consumption preference—all litigators prefer winning to losing, and one must assume prosecutors share that preference. Between and in Los Angeles, the District Attorney brought excessive force prosecutions in forty-three cases—less than one-quarter of one percent of alleged acts of excessive force.

Federal prosecutors were even less active. The Department of Justice initiated only three prosecutions against police officers in Los Angeles during the same ten-year period.

The import of these statistics is clear: the criminal justice system punishes officers engaging in misconduct so rarely that it could not be expected to deter potential future offenders. First, they often focus on conviction rates. Seventeen lawyers assigned to the Los Angeles SID are responsible for prosecuting police officers and public officials.

These individuals are experienced prosecutors who have garnered an average of ten years of experience before they enter the unit. This is certainly true regarding obtaining convictions in nonpolice prosecutions. Bernard E.

Levine, supra note 16, at discussing how grand juries in police cases represent a model for the criminal justice system. Times Dec. This statement is also supported by the number of cases in which indictments are handed down by grand juries.

For instance, according to the Bureau of Justice Statistics, in more than , cases prosecuted by federal prosecutors, the grand jury failed to return an indictment in only Mark Motivans, Bureau of Justice Statistics. This number was arrived at by taking the total number of cases reported , and subtracting those that were declined by prosecutors 30, ; out of the remainder of cases presented to a grand jury, only 11 were dismissed.

The Supreme Court has ruled that it is not necessary for prosecutors to present exculpatory evidence to a grand jury. See United States v. Williams, U. Anything that the defendant says in the grand jury can be used against him or her at trial.

Also, by presenting a case so early on, the defendant must devise—and effectively disclose to the prosecution—his or her theory of the case. Furthermore, in some jurisdictions, the District Attorney has a policy of refusing to plea bargain any case in which the defendant testifies before the grand jury. For example, the transcripts show that the prosecutors cross-examined potential prosecution witnesses, probing for inconsistencies in their testimony. They were openly skeptical of the testimony of others.

There were about 60 witnesses called during almost 75 hours of proceedings, resulting in almost 5, pages of transcript. Times Nov. Post Nov. Pervaiz Shallwani et al. Since voter fraud matters are always politically sensitive, local prosecutors who are usually themselves elected may hesitate to deal with them.

Objective Review In deciding whether to initiate proceedings, prosecutors usually undertake a thorough and objective review of the case. The review may consider the following questions: Which laws were broken?

Are the allegations supported by facts, and are there credible, reliable witnesses willing to testify in court? Was the intent criminal in nature? What are the prospects of obtaining a conviction? National or Local Prosecution Within the judicial system, case jurisdiction is determined primarily by which laws have been broken. Decision to Prosecute. Practitioners' Login Desktop Version. The review will be carried out by a lawyer who was not involved in making the original decision.

Under section 42 f of the Freedom of Information Act, , only records concerning the general administration of the Office of the DPP can be made public. This means you cannot get information from files relating to individual criminal cases. Decision to Prosecute. How does the DPP reach a decision to prosecute? Why might the DPP decide not to prosecute a case? For example: where the offender is under 18 years of age and the case could be dealt with under the Juvenile Diversion Programme; where an adult is cautioned under the Adult Caution Scheme for minor offences rather than prosecuted; or where, in the public interest, it is better not to prosecute, for example if the offender is seriously ill.

How long does it take the DPP to reach a decision? Other cases may take longer because: they are more complicated; there is a lot of evidence to think about; there is more than one accused person; or the DPP needs more information before making a decision.

Does the DPP prosecute cases on behalf of crime victims? Does the DPP give reasons for her decisions not to prosecute? You can ask the DPP for a summary of reasons for a decision not to prosecute if you are: a victim of crime and the decision in your case was made on or after 16 November ; a family member of a victim in a fatal case where the death took place on or after 22 October ; a solicitor acting on behalf of either of the above.

How can I request a summary of reasons for a decision made by the DPP? This form is also available from your nearest Garda station You must make a request within 28 days of the date you are told of the decision not to prosecute.

Will the DPP give reasons in all cases?