The Pennsylvania State University Dickinson School of Law
Advanced Criminal Procedure
Professor Thomas Place
Fall 2012
I. Initiating Prosecution
Police Officers use their discretion and decide when to arrest. When they do, they file a complaint or information supported by affidavit of probable cause
– A defendant arrested without a warrant is entitled to “prompt” post arrest assessment of probable cause by a magistrate àshould be within 48 hours
Judges may disagree with a prosecutor’s charging decision and decide to dismiss charges but, because of separation of powers, they cannot order prosecutors to bring other charges
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The Charging Decision
Several Factors influence the decisions of whether to prosecute a case:
a. Economic Realities à Not enough manpower
b. Assess which Prosecutions are likely to bring the greatest benefit to the community
c. Evaluate the merits and strengths of each individual case [proof beyond reasonable doubt]
i. Must consider the impact of a trial on witnesses, strength of evidence, deterrence value, and harm caused by the crime
d. Overall impact of their decisions to prosecute or drop a case
Prosecutorial Discretion cannot be exercised on the basis of race. SCOTUS
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Limits on Prosecutorial Discretion
1. Statutory and Administrative Limits
a. Prosecutors can only charge conduct that the legislature has designated as a crime.
b. Prosecutors are free to charge any crime as long as it is supported by probable cause
c. Prosecutors may adopt guidelines for their decisions to prosecute (ex. Federal U.S. Attorney’s Manual)
2. Ethical Limits
a. Prosecutors have special ethical responsibilities because of the power they wield (See MPRE)
i. Can’t bring charge that is not supported by PC
ii. Can’t bring charge if there is not sufficient admissible evidence to support the conviction
iii. Prosecutor may decline to prosecute (equitable considerations under Model Rules)
iv. Shouldn’t be compelled by supervisor if Prosecutor feels there is reasonable doubt
v. No weight should be given to personal or political advantages of prosecuting case
vi. Local Juries tendencies to acquit certain crimes should not factor in decision
vii. Charges and punishment sought should be fair reflection of the gravity of the offense
b. Prosecutor can be disbarred for violations (Duke)
3. Constitutional Limits
a. Selective or Discriminatory Enforcement
i. General Presumption that prosecutors will exercise their discretion in good faith
1. However, the prosecution can be dismissed where a defendant shows that the prosecution used an impermissible motive to prosecute, such as defendant’s race, religion, or exercise of his 1st amend rights or other protected statutory and constitutional rights
ii. Burden of Proof – Defendant must show that:
1. The passive enforcement system had a discriminatory effect; AND
a. In a race case, the defendant must show that similarly situated individuals of a different race were not prosecuted
2. It was motivated by discriminatory purpose [i.e. intentional discrimination]
iii. To obtain discovery [which is going to be required for Defendant to carry burden] the Defendant must show some evidence tending to show the existence of the essential elements
1. For Race claim, must make a credible showing of different treatment of similarly situated persons
b. Vindictive Prosecution
i. Increasing the number or severity of charges may be challenged as violating due process if it penalizes a defendant’s exercise of a constitutional or statutory right. However, the mere increase in charges does not satisfy the standard, showing of actual vindictiveness reqd
1. No presumption where prosecutor threatens to increase charges if defendant does not accept plea offer or where defendant requests a jury trial
ii. Courts are reluctant to find vindictiveness finding that it does not apply when charges are escalated following a mistrial or additional charges are filed after an acquittal
iii. New evidence or a reevaluation of the case are permissible reasons for increasing charges
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Formal Charging Mechanisms
1. The Grand Jury – the 5th amendment provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury” – not incorporated
a. Operation of the Grand Jury
i. This is an “ex parte” process where only the prosecutor is represented in the proceeding (no judge, defendant, etc.)
ii. Prosecutor presents evidence and Grand Jury decides if PC exists, if so, they sign indictment
iii. Transcripts may be released following indictment or as in federal court only be released where grand jury witness testifies at trial or party shows particularized need for it
iv. Violations of a grand jury proceeding are generally moot once defendant is convicted
v. Grand Jury Error raised by D does not result in dismissal w/o showing of actual prejudice
b. Screening Function of Grand Jury
i. Prosecutor may present hearsay or suppressible evidence as long as State allows
ii. Grand Jury Witness has no right to counsel
iii. No requirement for Grand Jury to consider defense evidence (exculpatory evidence)
iv. Defendant has no right to be present
v. State may modify operation of grand jury to provide more rights for defendant
c. Grand Jury Reform
i. ABA Proposed Changes: counsel present, defendant present w/ right to testify, only admissible evidence may be presented, etc.
2.Preliminary Hearing
a. In Federal Court, these are used only to hold a defendant until an indictment can be obtained
b. 2/3rds of states permit felony prosecutions to be initiated by information or indictment.
c. Defendant has right to be present and represented by counsel and cross exam witnesses
d. Magistrate judge presides
e. Hearsay may be allowed depending on state, burden of proof varies by state
f. Any errors at prelim are considered harmless error once defendant is tried and convicted
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e the safety of the community
b. Other Factors
i. Seriousness of the offense
ii. Punishment defendant faces
iii. Prior criminal record
iv. Defendant’s ties to the community
v. Defendant’s character
vi. Defendant’s financial status
2. Bail Pending Appeal [no presumption of innocence]
a. Defendant may be released if court finds by clear and convincing evidence that the person is not likely to flee or pose danger to safety of person or community AND the appeal is not for purposes of deal and raises a substantial question of law or fact likely result in reversal or order for new trial
3. Other Types of Preventative Detention
a. Detention of Material Witnesses [criminal statute]
i. An individual who has information regarding a criminal proceeding whose appearance may become impracticable to secure by subpoena
ii. This may be used for Grand Jury witnesses [criminal proceeding includes grand jury proceeding]
b. Preventive Detention of Sexual Predators [civil confinement]
i. Proof of more than a mere predisposition to violence is req’d to be constitutional
ii. Generally Statutes require evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated
iii. Commitment under these acts is not criminal as it serves no criminal purpose [neither retribution or deterrence] and therefore is civil in nature [no double jeopardy]
iv. Act may be unconstitutional if defendant can show it is punishment àmust show by the clearest proof that act is so punitive in either purpose or effect as to negate it being civil
c. Preventive Detention for Immigration Detainees [civil confinement]
i. Immigrants illegally in the U.S. may be detained by the government even if they have not been convicted of or charged with a crime
1. Confinement justified under Governments regulatory needs but may be challenged via Habeas if alien not removed within 90 days.
d. Enemy Combatants
i. May be detained indefinitely but can challenge the legality of their long-term confinement
ii. The court has not identified what procedures would satisfy due process concerns in indefinite detention of enemy combatants
iii. Military Commission Act of 2006 provides the non-citizens held as enemy combatants have no access to federal court via habeas but instead must go through the military proceedings and then seek review in the District of Columbia Circuit
