Decision to Charge Flashcards
Is a prosecutor required to bring all the charges that might be supported by evidence?
No
Before a prosecutor brings charges, what must she find?
that probable cause exists to believe that the individual charged committed the crime in question.
Is it permissible for the prosecutor to consider a witnesses reluctance to testify when determining to bring charges?
Yes
Is it permissible for the prosecutor to decline to bring charges because the “would be” defendant agreed to serve as a witness in a different prosecution?
Yes
Is it permissible for a prosecutor to consider the extent of harm cause by the criminal offense when determining whether to bring charges?
Yes
Is it permissible for a prosecutor to decline to bring charges because the authorized punishment is disproportionate to an offense?
Yes
May a prosecutor consider how the case might affect his career when considering whether to bring charges.
No, a prosecutor may not consider the impact on his career when considering whether to bring charges.
May a prosecutor consider past jury acquittals when considering whether to bring charges?
No
May a prosecutor consider the person’s character in the community such as the person is well-liked or not when deciding to bring charges or not?
No.
As a general matter will courts intervene and review a prosecutor’s decision not to prosecute?
No - Inmates at Attica Correctional Facility. This rooted in the separations of powers doctrine
Under the majority approach, may prosecutors decline to act after a grand jury finds probable cause?
Yes. Under this view pc is just one of several factors that a prosecutor must weigh when determining to bring charges. Grand jury just determines pc and prosecutor determines whether to bring charges
Under the minority approach, must a prosecutor be required to prepare indictments requested by a grand jury and sign them?
Yes, a prosecutor should be required to prepare documents and sign documents but he is not required to prosecute. This makes every thing transparent since no one see what happens in a grand jury.
Bottom line: no matter which jurisdiction can a prosecutor be forced to prosecute under the majority or minority approach?
No - a prosecutor cannot be forced to prosecute.
May judges review a prosecutor’s decision not to bring charges even when a statute allows the judges to file a criminal complaint when the prosecutor does not?
No, Attica held a separations of power doctrine prevents judges from reviewing decisions not to prosecute.
May judges review a prosecutor’s decision to drop charges after they have been filed?
No, a public interest exist in protecting against government harassment (charging and then dismissing and then recharging)
May defendants challenge (and courts review) an allegation of selective prosecution?
yes, selective prosecution is not a defense on the merits of the charge, but an independent assertion that the prosecutor has brought the charges for reasons forbidden by the Constitution
What must a defendant show to make a selective prosecution claim?
Both: Discriminatory intent and discriminatory effect.
How does a defendant prove discriminatory effect?
by identifying individuals who were not (the same race) that could have been prosecuted for the same offenses for which respondents were charged, but were not prosecuted.
Will general claims about disparate treatment suffice to prove discriminatory effect?
No
How does a defendant prove discriminatory intent
by showing that the prosecutor acted because of not merely in spite of some constitutionally impermissible rationale. (must prove prosecutor targeted defendant based on a constitutionally protected class or protected act)
What is the burden of proof for selective prosecution for a non-protected class?
Rational Basis - meaning to be legitimate, prosecution need only be rationally related to some legislative enforcement objective.
Is discriminatory intent and discriminatory effect needed for non-protected classes?
No
When there are overlapping statutes that prescribe different criminal sentences for the exact same conduct, may a prosecutor bring charges under either statute?
Yes, a prosecutor is free to bring charges under either statute. However, a prosecutor cannot bring different charges against similarly situated defendants for reasons forbidden by the constitution (race, religion )
Whose job is to remove harsher overlapping criminal statutes?
The legislature
Does the Due Process Clause forbid vindictive prosecutions?
Yes
What does it mean for the due process clause to forbid vindictive prosecution?
Prosecutors are constitutionally forbidden from increasing the charges against a defendant simply because the defendant exercised his constitutional right to a certain procedure such as to an appeal.
When does a realistic likelihood of vindictiveness occur?
when a prosecutor has some incentive to dissuade defendants from exercising their constitutional rights.
What standard is used to determine a likelihood of vindictiveness?
An objective standard and the burden is on the prosecutor to show a legitimate basis for the increased charges
If new facts arise or change before a second retrial, will increase charges be considered vindictive?
No
Under Goodwin, how did the Supreme Court Significantly narrowed Blackledge?
It narrowed the times where the presumption of vindictiveness occurs under Blackledge.
When did Blackledge had a presumption of vindictiveness?
when the prospect of increased charges dissuade the defendant from exercising his rights.
When does Goodwin find that a presumption of vindictiveness is appropriate?
Only after a case has already been prosecuted to verdict prosecution is throwing the book at the defendant.
Does a prosecutor that increases charges after defendant turned down plea deal constitute vindictiveness?
No, a prosecutor may increase charges after a defendant turns down a plea deal because there is little danger that state is retaliating against the accused for lawfully attacking his conviction.
Are judges also forbidden from acting vindictively?
Yes, judges cannot impose harsher sentences simply because a defendant has exercised his right to an appeal.
