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Do prosecutors ever do their own investigation, or do they just rubber-stamp the police report?
Prosecutors usually make charging decisions based on little more than a cursory review of the police report and a defendant’s criminal history. If laboratory testing was done (such as in under-the-influence cases), prosecutors may also check the results of those tests before filing charges.
In some parts of the country, prosecutors may personally talk to police officers, victims, and witnesses before filing charges. (Prosecutors do not normally talk to the suspect, especially if the suspect is already represented by counsel.) In most places, however, and in big cities especially, the charging process is usually too harried to allow independent investigations. For instance, a single intake prosecutor may process 200–300 cases a day.
Although prosecutors technically have powerful discretion in their charging decisions, political realities are such that they often don’t use it. Instead, if the police say charges should be brought, prosecutors charge.
For a number of reasons, many prosecutors view their role as house counsel for the local police department. One reason is that prosecutors would be out of business without police. A second is that every time a prosecutor decides not to file charges, the prosecutor is implicitly, if not directly, snubbing the arresting officer. The prosecutor is saying to the officer in effect, “You didn’t have enough evidence to make this arrest,” or “You didn’t follow correct procedures”; at least, that’s what the officer often hears. Rather than have to play this role with the police, a prosecutor may go along with the officer’s assessment and let the court and the defense worry about preventing any resulting injustice.
When prosecutors don’t meticulously screen cases, some defendants end up charged with crimes even though the evidence is insufficient to prove them guilty. Other defendants face technically accurate charges supported by admissible evidence, but the charges stem from circumstances for which many of us would probably not impose punishment.
Example: Officer Bremer arrested Marla Michaels for drunk driving as she left a fraternity house party. The arrest was questionable; Marla’s blood alcohol reading was under the legal limit. The officer’s police report indicates that Marla said, “I had a few drinks,” but does not indicate whether the officer gave her the Miranda warning (that is, telling Marla she has the right to remain silent; see Chapter 1). An intake prosecutor is likely to file charges against Marla under these facts. The intake prosecutor probably won’t take the time to find out first whether the officer gave the Miranda warning to Marla, even though that might affect whether the prosecution could offer Marla’s statement into evidence. The intake prosecutor might also want to support the police officer by following through with the charge even if the prosecutor personally feels that the case shouldn’t be brought. Finally, while recognizing that the charge might be weak, the intake prosecutor may reason that Marla will probably agree to plead guilty to a lesser charge and that at least some punishment will serve as a lesson to local college students.
by: Paul Bergman
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