Decision to Charge

Question 1

Is a prosecutor required to bring all the charges that might be supported by evidence?

Answer 1

No

Question 2

Before a prosecutor brings charges, what must she find?

Answer 2

that probable cause exists to believe that the individual charged committed the crime in question.

Question 3

Is it permissible for the prosecutor to consider a witnesses reluctance to testify when determining to bring charges?

Answer 3

Yes

Question 4

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?

Answer 4

Yes

Question 5

Is it permissible for a prosecutor to consider the extent of harm cause by the criminal offense when determining whether to bring charges?

Answer 5

Yes

Question 6

Is it permissible for a prosecutor to decline to bring charges because the authorized punishment is disproportionate to an offense?

Answer 6

Yes

Question 7

May a prosecutor consider how the case might affect his career when considering whether to bring charges.

Answer 7

No, a prosecutor may not consider the impact on his career when considering whether to bring charges.

Question 8

May a prosecutor consider past jury acquittals when considering whether to bring charges?

Answer 8

No

Question 9

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?

Answer 9

No.

Question 10

As a general matter will courts intervene and review a prosecutor’s decision not to prosecute?

Answer 10

No - Inmates at Attica Correctional Facility. This rooted in the separations of powers doctrine

Question 11

Under the majority approach, may prosecutors decline to act after a grand jury finds probable cause?

Answer 11

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

Question 12

Under the minority approach, must a prosecutor be required to prepare indictments requested by a grand jury and sign them?

Answer 12

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.

Question 13

Bottom line: no matter which jurisdiction can a prosecutor be forced to prosecute under the majority or minority approach?

Answer 13

No - a prosecutor cannot be forced to prosecute.

Question 14

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?

Answer 14

No, Attica held a separations of power doctrine prevents judges from reviewing decisions not to prosecute.

Question 15

May judges review a prosecutor’s decision to drop charges after they have been filed?

Answer 15

No, a public interest exist in protecting against government harassment (charging and then dismissing and then recharging)

Question 16

May defendants challenge (and courts review) an allegation of selective prosecution?

Answer 16

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

Question 17

What must a defendant show to make a selective prosecution claim?

Answer 17

Both: Discriminatory intent and discriminatory effect.

Question 18

How does a defendant prove discriminatory effect?

Answer 18

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.

Question 19

Will general claims about disparate treatment suffice to prove discriminatory effect?

Answer 19

No

Question 20

How does a defendant prove discriminatory intent

Answer 20

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)

Question 21

What is the burden of proof for selective prosecution for a non-protected class?

Answer 21

Rational Basis - meaning to be legitimate, prosecution need only be rationally related to some legislative enforcement objective.

Question 22

Is discriminatory intent and discriminatory effect needed for non-protected classes?

Answer 22

No

Question 23

When there are overlapping statutes that prescribe different criminal sentences for the exact same conduct, may a prosecutor bring charges under either statute?

Answer 23

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 )

Question 24

Whose job is to remove harsher overlapping criminal statutes?

Answer 24

The legislature

Question 25

Does the Due Process Clause forbid vindictive prosecutions?

Answer 25

Yes

Question 26

What does it mean for the due process clause to forbid vindictive prosecution?

Answer 26

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.

Question 27

When does a realistic likelihood of vindictiveness occur?

Answer 27

when a prosecutor has some incentive to dissuade defendants from exercising their constitutional rights.

Question 28

What standard is used to determine a likelihood of vindictiveness?

Answer 28

An objective standard and the burden is on the prosecutor to show a legitimate basis for the increased charges

Question 29

If new facts arise or change before a second retrial, will increase charges be considered vindictive?

Answer 29

No

Question 30

Under Goodwin, how did the Supreme Court Significantly narrowed Blackledge?

Answer 30

It narrowed the times where the presumption of vindictiveness occurs under Blackledge.

Question 31

When did Blackledge had a presumption of vindictiveness?

Answer 31

when the prospect of increased charges dissuade the defendant from exercising his rights.

Question 32

When does Goodwin find that a presumption of vindictiveness is appropriate?

Answer 32

Only after a case has already been prosecuted to verdict prosecution is throwing the book at the defendant.

Question 33

Does a prosecutor that increases charges after defendant turned down plea deal constitute vindictiveness?

Answer 33

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.

Question 34

Are judges also forbidden from acting vindictively?

Answer 34

Yes, judges cannot impose harsher sentences simply because a defendant has exercised his right to an appeal.