Reference no: EM133300022

Case: Police officers bring a case to the prosecutor who then takes over and decides if the case is to be prosecuted. Prosecutors may decide not to prosecute if they think the evidence is weak and they cannot prove the case or if, as "officers of the court", they feel prosecution would not do justice. Prosecutors can also divert cases before judicial proceeding begins on the condition that the defendant complete certain programs. Selective prosecution is a necessity because resources are limited. The prosecutor's power to charge gives him or her enormous power over peoples' lives and their liberty.

When suspects are arrested without a warrant, have no lawyer because they are too poor to hire one, haven't been charged with a crime, and are locked up in jail, magistrates must determine if probable cause exists to detain them. Probable cause to detain a suspect is decided at the suspect's first appearance (probable cause) hearing. In County of Riverside v. McLaughlin, the Supreme Court ruled that a judge's determination that there is probable cause to detain a suspect must happen within 48 hours of arrest. If the first appearance does not happen within 48 hours, the government must provide evidence of an extraordinary circumstance that caused the delay. Probable cause to detain is a higher standard than probable cause to arrest.

The criminal complaint authorizes judges to conduct the first appearance. At the first appearance, judges inform defendants of the charges, their constitutional rights, set bail, and appoint attorneys for those who are indigent. Felony defendants generally do not enter a plea at this time, however, misdemeanor defendants most often enter a plea at first appearance. At an arraignment, felony defendants are required to appear in court to enter a plea.

Most defendants are released from jail prior to trial. Those that are not released often spend significant amounts of time in jail at considerable public expense. Judges rely on a number of ways to release defendants. Pretrial release and bail take a variety of forms such as citation release, release on recognizance, and release on money bonds. There is no constitutional right to bail. The Eighth Amendment only prohibits excessive bail. What is excessive is the subject of interpretation. How much bail is excessive is determined by the severity of the offense and the suspect's ability to pay. Constitutional rights that affect bail include due process because being in jail could prevent suspects from preparing a defense and equal protection because being poor could affect whether a suspect is freed.

Preventive detention allows judges to deny bail to defendants who are dangerous or flight risks after they have been given the right to an appointed lawyer, to testify at the preventive detention hearing, to present evidence, and to cross-examine. The standard for detaining a defendant is clear and convincing evidence that the defendant won't appear for trial or is a threat to public safety. The Supreme Court ruled in U.S. v. Salerno that the preventive detention provisions of the federal Bail Reform Act of 1984 are constitutional.

The right to retained (paid) counsel was extended to appointed (free) counsel in state court trials in certain limited circumstances in the 1930s. The right was then extended to all defendants facing federal criminal trials, regardless of their circumstances. Not until 1963, in Gideon v. Wainwright did the Supreme Court rule that all defendants who cannot afford to retain counsel, including those in state court proceedings, have a Sixth Amendment right to have counsel appointed. Today, most large counties retain public defenders, paid by the public to defend indigent defendants.

The right to counsel attaches to all critical stages of the criminal process, including custodial interrogation, lineups after formal charges, Grand Jury appearances and arraignments. The right is not attached to investigative stops, frisks, and first appearances at trial. The right to appointed counsel applies to poor defendants where conviction would result in actual incarceration, even if they face only misdemeanor charges.

Courts uphold the right to effective counsel under the older "mockery of justice" standard or the more modern and common "reasonably competent attorney" standard. This modern standard requires a defendant who claims on appeal that they had ineffective representation to prove both that their attorney's performance was not reasonably competent and the incompetence was probably responsible for their conviction. Defendants have a right to counsel of their choice if they can afford to pay for the counsel or if counsel is willing to represent them for free.

Preliminary hearings (based on a criminal information drawn up by prosecutors) and grand jury reviews (based on a prosecutor's indictment) test the government's case against the defendant. Grand jury hearings have relaxed standards of evidence and testimony and defendants are banned from them. Preliminary hearings are public and adversarial in nature. Judges preside over them and decide if there is sufficient evidence to go to trial. Grand jury proceedings are held in private and only the prosecution's case is presented to a group of jurors who decide if the matter should be tried. Defense counsel is not permitted to attend. Debate exists as to whether the grand jury is effective and fair.

Arraignments bring defendants to court to hear and answer charges against them. Defendants enter one of four possible pleas: guilty, not guilty, not guilty by reason of insanity, or nolo contendere.

Pretrial motions ask courts to decide important matters that do not require a trial. These matters include double jeopardy, speedy trial, change of venue, and suppression of evidence. The Fifth Amendment protection against double jeopardy ensures the prosecution has "one fair shot" at convicting a defendant. The Sixth Amendment guarantees a speedy trial so prosecution must begin promptly. The Sixth Amendment also ensures that changes of venue occur only at the defendant's request and only where great prejudice would otherwise exist. Trial judges consider motions to exclude evidence under the exclusionary rule in suppression hearings.

Question 1: Discuss the reasons why the prosecutor may have decided not to bring charges in this case.

Question 2: Based on the reasons for a grand jury listed in the chapter, should a prosecutor have the authority to refuse to charge an indictment made by a grand jury? Why or why not?