ON PROSECUTORIAL DECISION MAKING: FACTORS AND PHILOSOPHIES.
TABLE OF CONTENTS INTRODUCTION I. THE FACTORS A. Case Related Factors 1. The Strength of the Evidence 2. The Seriousness of the Offense 3. The Defendant's Characteristics 4. The Victim's Desires and Characteristics B. Factors Beyond the Case: Internal Influences 1. Cognitive Bias 2. Ordinary Bias 3. Self-interest 4. The Prosecutor's Philosophy 5. The Prosecutor's Experience C. Factors Beyond the Case: External Influences 1. Prosecutorial Offices' Policies and Culture 2. Resources 3. Actors in the Criminal Justice System II. EVALUATING THE FACTORS IN LIGHT OF THE PROSECUTOR'S ROLE III. SHIFTING WEIGHT TO PROPER FACTORS A. Existing Policy Recommendations B. New Proposal: Mandatory "Strength-of-the-Evidence" Rating IV. CONCLUSION
In an era of heightened criticism of the criminal justice system, reporting of poor performance by system actors is not hard to find. For example, professor and former defense attorney, Abbe Smith, began her sarcastically named piece, A re Prosecutors Born or Made?, by telling the true story of a prosecutors' handling of a young man's trespass case. (1) Simply put, the case was one that Smith believed that the government should not have spent time and tax dollars on; the defendant was a high school student, with no criminal record, who was merely caught talking to a friend on a park bench two hours after the park closed. (2) Nevertheless, the prosecutor decided to press the case and even obtained several conditions on the defendant's pretrial release. (3) The prosecutor justified his choices to Smith only by saying there was sufficient evidence to prosecute and that he was upset that the defendant ran from police, gave a false name, and lied about his age after being told he was not supposed to be in the park after hours. (4) The prosecutor refused to relate to the young defendant, and instead, declared that as an adolescent he would have "never lie[d] to the police." (5)
At trial, the defense theory played out successfully, and the government dismissed the case before the judge could grant a motion for acquittal. (6) When the attorneys questioned jurors post trial, many felt as Smith anticipated. (7) One juror questioned, "Why would you take a young man on the verge of adulthood and put him through a criminal trial for being on a playground?" (8) During trial, another juror attempted to pass a note to the judge which read "This is the worst waste of taxpayer time and money I have ever seen." (9) Some jurors also excused the defendant's dishonest behavior, saying he probably feared being "kicked out of foster care" and that young people often lie to get out of trouble. (10) The prosecutor assigned to take the case to trial responded only that she "had a 'duty' to prosecute," to the jurors' disgust. (11)
By contrast, Assistant District Attorney Mark Larson provides an example of more noble, nuanced, and "deliberate" prosecutor behavior in The Exoneration of Brandon Olehar. (12) At the prodding of the Innocence Project Northwest, Larson reviewed the case of Brandon Olebar, who Larson's office convicted of a violent home invasion and robbery in 2004. (13) The conviction was largely based on the victim's selection of Olebar from a photo lineup. (14) The Innocence Project presented affidavits from individuals claiming to have participated in the crime that exculpated Olebar (15) and expert analysis that discredited the eyewitness. (16) After Larson met with Olebar, who previously rejected all plea offers and continued to maintain his innocence, the office was convinced of its error and helped Olebar have his conviction vacated. (17) After his release, Olebar's former prosecutors met with him again and apologized. (18) Larson explained, "The decision to apologize was intentional and reflected our view that good institutions, like people, need to be compassionate, discerning, and possess humility." (19)
What causes such variations in prosecutorial decision, and how can the law promote better, more nuanced prosecuting? For policymakers who wish to answer this question, the obvious first step is to understand prosecutorial decision making. (20) Being fully informed requires understanding not only the factors that prosecutors consciously consider when making decisions about cases, but also those that subtly and indirectly influence prosecutors' decisions. Next, to have a clear target at which to aim policy in this area, policymakers must differentiate between factors and influences that play a legitimate role in the decision-making of prosecutors and those that do not. Naturally, a final task is to create policies that decrease the role of improper factors and influences on prosecutors' decisions and guide their weighing of legitimate factors.
This Note seeks to advise policymakers at each of those steps. In Part I, the factors and influences involved in prosecutorial decision-making are compiled and discussed. Part II further evaluates the validity of those factors and influences in light of the prosecutor's role. Finally, Part III examines several existing policy recommendations that may improve prosecutorial decision-making and offers an original proposal: mandatory "strength-of-the-case" rating.
I. THE FACTORS
When a prosecutor makes a decision about a case, the factors considered, either consciously or subconsciously, can be organized into two major groups: (1) those that relate to the case and (2) those that do not. (21) Factors that are unrelated to the case can be subcategorized based on whether they are internal or external to the prosecutor. (22)
Of course, case-related factors play the largest role in prosecutors' decisions. (23) The evidence's strength, offense's seriousness, and the defendant's criminal history all "drive prosecutorial decision making." (24) As discovered in a survey of two large district attorney's offices, to answer the preliminary question of whether a case "can" be proved, prosecutors look to the "strength of the evidence." (25) Then, most prosecutors ask whether a case "should" be proved before charging, and consider primarily the seriousness of the offense and the defendant's criminal history. (26) Other case-related factors that prosecutors consider in decision making include the defendant's age, demeanor, and the victim's wishes and characteristics. (27)
However, when prosecutors make decisions about a case, they do not simply analyze its facts and select the route that seems most just. Rather, their analysis is imperfect. (28) Their cognitive facilities are susceptible to error and oversight, and their preexisting internal filters and blocks change how external information is understood and perceived. (29) Also, prosecutors' self-defined missions frame that information in various ways. (30) Furthermore, their self-interest is always tugging, often in a direction not necessarily in concert with justice, (31) and they must continually account for external constraints and interests. (32) All of these factors are explored in the following sections
A. Case Related Factors
1. The Strength of the Evidence
When a prosecutor is evaluating whether he could convict on a potential charge or an ongoing charge, he looks primarily to the strength of the evidence. (33) In a survey of two DA's offices that serve urban and suburban populations and handle many types of cases, over sixty percent of their prosecutors ranked the "probability of conviction," (which is largely dictated by the strength of the evidence) as the most important factor considered at screening. (34) However, how prosecutors assess the strength of their cases is far less apparent.
A prosecutor's understanding of the strength of a case is not simple or mathematic. The analysis is affected by a prosecutor's confidence in the specific officers that collected the evidence; a prosecutor may decide to pass over a case because he knows the officer involved to be problematic. (35) The strength of evidence is also subject to decay, as witnesses' memories and victims' passions can fade. (36) Furthermore, prosecutors favor certain types of evidence over others, such as scientific evidence and confessions. (37) Others prefer physical evidence over testimonial evidence because it is "less likely to change over time and is less open to interpretation." (38) Thus, many prosecutors are more likely to press drug or gun related charges, which often yield physical evidence, than other types of charges. (39) Moreover, the importance of different types of evidence depends on the charging contexts. (40) For example, though prosecutors generally disfavor victim testimony as evidence, its presence and credibility is central to a prosecutor's decision to charge a defendant with a sex crime because the victim's testimony is often the crux of the state's case in that context. (41)
When a prosecutor evaluates the strength of evidence, his true concern is a jury's likely reception. (42) Thus, where the prosecutor anticipates that jurors will have an expectation about what evidence should be present given the allegations, that evidence's existence can determine the case's strength. (43) For example, according to prosecutors in the above study, because videos are used in all DUI arrests in their counties, jurors on cases involving DUI charges expect footage of the defendant acting very drunk, and a case is not as strong without it. (44) The significance of the evidence to the fate of a case is unsurprising, but this factor's interplay with those that follow is less apparent.
2. The Seriousness of the Offense
The more serious a case, the more a prosecutor feels compelled to begin or continue prosecution. (45) However, prosecutors' ranking of the seriousness of offenses is not uniform because the ranking usually does not follow the applicable statutory scheme. (46) Some prosecutors have crimes that they especially despise. (47) Others, in considering this factor, may adjust their concerns to match those of the jury, and prosecutors may decide to table a case in anticipation of an '"I don't care' sentiment." (48) Because jurors frequently "don't care" about drug offenses, many prosecutors look for defendant-specific factors to "excite" the jurors, such as criminal history or demeanor, when considering the likelihood of conviction. (49) Also, this factor interplays significantly with the limited resources of a prosecutor's office. When resource constraints force prosecutors to apportion justice, prosecutors use relative seriousness to determine which cases to prosecute. (50)
Additionally, many prosecutors consider a charge's seriousness when questioning whether the interests of justice will truly be served by beginning or continuing prosecution. (51) By failing to consider this factor in this manner, the prosecutors in the introductory story disconnected from the public's perception of justice and ultimately caused the jurors' disgust.
3. The Defendant's Characteristics
A criminal record increases a prosecutor's dislike of the defendant, incites the belief that it would be just to remove him from society, (52) and elevates confidence that the allegations against him are true. (53) Additionally, because prosecutors are aware that jurors are normally also affected by this factor, criminal history increases a prosecutor's belief in the likelihood of conviction. (54) Thus, the presence of an especially dangerous defendant can bring prosecutors to accept cases that they otherwise would not and to prosecute those cases more harshly. (55)
The defendant's age can also sway a prosecutor's choices. (56) For example, some prosecutors believe that juvenile fistfights are best resolved by simply explaining to the participants, after their arrest, that their actions are unacceptable. (57) Many prosecutors especially consider the impact of their decisions on young defendants, asking whether "pursuing a case will do more harm than good," or whether they "want to have a 17 year old with a felony conviction?" (58)
For defendants of any age, the demeanor that they take when interacting with officers of the law, officers of the court, and the court itself, affects a prosecutor's choice about cases. (59) Where the offense is minor, the prosecutor's charging decision may be determined by a defendant's show of remorse instead of disrespect to courtroom actors. (60) A defendant's characteristics can be especially powerful when a prosecutor has little information about a case and only a moment to devote to it. (61)
4. The Victim's Desires and Characteristics
The importance of a victim's attitude, for making a charging decision, depends on the kind of offense committed against the victim. (62) In some cases, such as sex offenses, where the victim can be harmed by the trial process, the victim's will is of paramount concern to prosecutors. (63) In others, such as domestic violence cases, prosecutors more comfortably take on the role of an unwelcomed liberator. (64) In this context, a prosecutor will still consider the victim's willingness to testify when evaluating the strength of the evidence but will defer less to the victim's desire to table the case. (65) Also, when a victim has a criminal record or pending cases, prosecutors generally consider it "a liability to the case," as it weakens the victim's credibility, and some prosecutors have found such victims to be harder to work with. (66) This characteristic results in the dismissal of some cases. (67)
B. Factors Beyond the Case: Internal Influences
I. Cognitive Bias
The impact of cognitive bias on prosecutorial decision-making has been extensively researched and discussed. (68) Essentially, cognitive bias describes the tricks a mind plays on itself to service its desire to feel correct. (69) For instance, one aspect of cognitive bias is "[c]onfirmation bias ... the tendency to seek to confirm, rather than disconfirm, any hypothesis under study" and another is "selective information processing," the overvaluing of information that is consistent with one's preexisting theories. (70) Cognitive biases affect prosecutors in critical ways, by potentially skewing their perception of the evidence's strength and influencing how they conduct investigations. (71) The combination of multiple different cognitive biases can create investigative "tunnel vision" in prosecutors and law enforcement agents, causing them to overly focus on a single suspect, while neglecting alternative suspects and exculpatory evidence. (72) Furthermore, belief perseverance, another subtype of cognitive bias, makes prosecutors unlikely to ever change their minds about a defendant, even against newfound exculpatory evidence, (73) and contributes to public perception of prosecutors as overzealous. (74)
2. Ordinary Bias
Prosecutors, like all people, are susceptible to the influence of their implicit biases: the subconscious disfavoring of a group of people. (75) A study involving white college students, who were interviewed, once by a black person and once by a white person, found that the students' "subtle and spontaneous behaviors," such as smiling and making less speech errors, "suggested higher levels of comfort" when interacting with someone of the same race. (76) In the same way, a prosecutor may subconsciously perceive a defendant of the same race, or one with which he shares any other attribute, as having a more or less dangerous demeanor, which can directly affect whether he chooses to prosecute. (77) In the 1970s and early 1980s, large correlations between defendant-victim race combinations and charges ultimately brought, were well documented. (78)
Prosecutors may charge due to the effect it will have on their political careers. (79) For example, former Maryland U.S. Attorney Thomas DiBiagio instructed his staff to get him three "front page" public corruption charges filed before November 6, which was within days of the presidential election that determined whether DiBiagio would keep a position in the White House. (80) Prosecutors' simple economic interests can also affect their decisions because their offices often have policies that use convictions as a measure of success. (81) Though such policies are discussed as an "external influence" below, their power clearly comes from the manipulation of prosecutors' natural self-interest. (82)
4. The Prosecutor's Philosophy
In addition to the circumstances of a case, the characters involved, and individual biases, a prosecutor's understanding of himself alters his decisions. (83) This dynamic is easily observable in the introductory stories. A prosecutor with a simplistic professional philosophy, such as an extreme "conviction psychology," will likely perform an imbalanced weighing of the other factors because he focuses almost solely on conviction. (84) In other words, the conviction-focused lens through which he considers the other factors likely taints those other factors. (85) For example, when a prosecutor's goal is to have the highest personal conviction rate, case weaknesses are merely obstacles rather than serious concerns of justice. (86) In contrast, prosecutors who understand their role to be justice-seeking practice more proportionality: the severity of their treatment of cases corresponds to the severity of the case, determined by case-related factors. (87) Unlike the prosecutorial approach in Smith's story, such prosecutors may comfortably seek less or no criminal punishment in a case where a defendant fails to seem threatening to society. (88) These prosecutors also perform more realistic evaluations of case-related factors to begin with. (89) Just as personal philosophy can taint a prosecutor's consideration of all other factors, it can also improve prosecutorial decisions because when the mission is justice in every case, the cognitive bias that a conviction is necessarily success and an acquittal is necessarily failure no longer holds as much sway. (90) In sum, because of the overarching effect this factor has on other factors, this factor is likely the largest determinant of the quality of a prosecutor's decisions over the course of his career. (91)
5. The Prosecutor's Experience
A prosecutor's experience will also affect his decisions and tends to transition the young prosecutor from a "gunner" attitude to a proportionate approach. (92) Many prosecutors begin their careers with a "highly adversarial posture," and treat every case as severe, but slowly recognize that justice is better served by proportionality. (93) In a study of over 200 state prosecutors, a common opinion among veteran prosecutors was regret for the aggressive approach of their younger years. (94) Yet, some prosecutors still keep a hyper aggressive approach throughout their careers. (95) These kinds of prosecutors, dubbed "zealots," view the strength of the evidence as nothing other than an obstacle and pose the greatest risk of wrongful convictions. (96) However, through experience, prosecutors come to see themselves as the arbitrators of "the interests of the defendant, the victim of the crime, and society at large," rather than a robotic charge bringer. (97)
C. Factors Beyond the Case: External Influences
1. Prosecutorial Offices' Policies and Culture
Two kinds of policies are relevant in this section: (1) those specifically governing what would otherwise be in the discretion of prosecutors, such as bans on making plea offers for certain offenses or mandatory sentence recommendations, (98) and (2) personnel policies. The first kind of policies can have an obvious impact on a prosecutor's decisions by restraining them, but these policies do not appear to be widely used, as many prosecutors prefer discretion and an informal system of oversight. (99) Interestingly, it seems the second kind of policy may have a greater influence on prosecutors' decisions. (100) In many DA's offices and at the federal level, policies governing professional advancement often propagate a conviction-focused philosophy. (101) For example, the DOJ's performance measures include a case outcome measure, which is essentially a tally of convictions versus findings of "not guilty." (102) Thus, at least in part, the DOJ's definition of a successful prosecutor is one with a high conviction rate. Because a prosecutor's success is determined by his rate of conviction, and in turn, his right to a raise or promotion, he is incentivized to win each case he begins. (103) This incentive may cause a prosecutor to continue a case despite concerning new evidence or a discovery that previously relied on evidence is unreliable.
The net effect of this factor is the prioritization of serious cases and increased disposal of minor cases by less optimal methods. (104) External resource restraints, like the availability of courtrooms, can cause prosecutors to offer more favorable plea bargains to defendants in minor cases, or dismiss their cases outright. (105) Internal resource restraints, like a staff shortage, makes preparatory and investigative work more difficult and contributes to the poor quality of legal work. (106) Because of this, a short staffed prosecutor's office may decline to prosecute an alleged assault that requires significantly more investigation, but will accept a drug charge, since it does not usually involve witnesses or victims. (107)
3. Actors in the Criminal Justice System
In addition, the prosecutor shapes his decisions due to his relationship with five entities: the court, defense counsel, law enforcement, supervisors, and juries. (108) Judicial influence varies greatly. (109) The track record of a judge can affect prosecutor's charging, selection of motions to file, and sentence recommendation. (110) Judges rarely affect whether a case is brought, but they often affect how a case is brought. (111) A judge's influence also depends on the prosecutor's personality. (112) Some prosecutors tailor every case to match their judge, while others adhere to their independent role from the court, accepting whatever response the court gives." (113)
The quality of a prosecutor's relationship with defense counsel directly influences the efficient and just resolution of cases. (114) When the relationship is good, a better exchange of information occurs, the prosecutor is more likely to consider the defense's negotiations in plea bargaining, and counsel is less willing to engage in trivial quarrels. (115) Thus, fifty-one percent of surveyed prosecutors consider good relations with the defense bar important or very important for their offices' success. (116) If the relationship is poor or antagonistic, prosecutors may be forced to try cases more often and may even make decisions to "punish" defense counsel in ways that ultimately harm the quality of a defendant's representation, like calling cases early or scheduling a particular defense attorney's cases in rapid succession to impair preparation. (117)
A prosecutor's relationship with law enforcement usually affects the prosecutor's decision in two ways: (1) by altering his perception of the strength of the evidence, as discussed above, and (2) by adding pressure to accept cases he otherwise would not have pursued. (118) Prosecutors become aware of which officers testify better in court and which officers conduct better arrests or investigations. (119) One prosecutor in a focus group even said ADAs were more likely to give a light plea offer or decline to charge at all in cases where "a 'bad cop' is involved." (120) Other junior prosecutors sometimes "succumb to the pressure from law enforcement and accept cases they would not otherwise," because of their discomfort with telling law enforcement "no". (121) Yet, because law enforcement is the conduit for potential cases and information about those cases, seventy-two percent of surveyed state prosecutors consider good relations with law enforcement to be "important or very important" to the success of their offices. (122)
Prosecutors are also influenced by their supervisors and colleagues. First, they usually receive training from colleagues and supervisors. (123) Second, prosecutors care about what their colleagues think about them. (124) Twenty percent of prosecutors surveyed in one office reported that they occasionally made decisions based on how colleagues would perceive their performance, and forty-five percent of prosecutors in that office reported that their decisions were occasionally influenced by how they think the supervisor would perceive their decisions (125) Naturally, younger prosecutors were more likely to report this feeling. (126) This dynamic's impact on cases will change depending on the culture of an office and senior office members' prosecution philosophies, but the dynamic suggests that a dominant philosophy, whether it prioritizes convictions or justice, will propagate.
Finally, a prosecutor's understanding of a jury's views and expectations affects his decisions greatly. (127) As discussed above, when prosecutors weigh the strength of the evidence, their true concern is the jury's likely perception of that evidence's strength. (128)
II. EVALUATING THE FACTORS IN LIGHT OF THE PROSECUTOR'S ROLE
Before policies to improve prosecutors' decision-making can be discussed, policymakers must discern the factor's validity. If a prosecutor defies his role by consciously or unconsciously considering an invalid factor, policy should exist to lessen that factor's weight in his decision making.
But what is the true role of the prosecutor? Unlike the purpose of ordinary attorneys in the adversarial system, which is to represent their client as aggressively as possible, the prosecutor's purpose is "quasi-judicial." (129) The Model Rules of Professional Conduct dubs prosecutors "minister[s] of justice" and charge them with corresponding responsibilities. (130) Thus, "[t]he duty of the prosecutor is to seek justice, not merely to convict." (131)
The factors that inhibit a prosecutor's role are immediately apparent. When bias enters a prosecutor's decision making, it works contrary to justice. (132) For example, when a cognitive bias causes a prosecutor to devalue the exculpatory weight of evidence, he has failed his paramount duty to seek justice. (133) Political interests are also obviously inappropriate considerations when deciding whether to charge or investigate, as both the ABA and the Department of Justice Manuals explicitly instruct. (134) Likewise, if prosecutors allow economic interests, dislike of defense counsel, or lack of courage to contradict law enforcement influence their decisions, prosecutors have done justice a disservice, because each is wholly unrelated to a defendant's guilt or innocence. (135) Yet, because many of these influences are practically unavoidable, (136) maximum suppression should be the policy objective. Similarly unavoidable, but less invidious, are prosecutors' limited resources. (137) It is beyond question that DA offices must consider which crimes to prioritize and which to sacrifice. (138) To the extent this hinders justice, better and increased spending is the obvious solution.
Of course, it is appropriate for prosecutors to consider case-related factors when making choices about cases, and it would violate their role to ignore those factors. However, it also violates the prosecutor's role to consider case-related factors for any purpose other than to seek the most just outcome and the best strategy to reach that end. Because prosecutors' philosophies frame how they perceive case-related factors, (139) their decisionmaking becomes flawed at multiple levels when their philosophies deviate from their true role. (140) Therefore, a justice-seeking philosophy, which treats cases proportionally, (141) is the only prosecuting philosophy that does not contradict the role of the prosecutor. Prosecutors who consider case-related factors through any other lens violates their role. (142) Policy aimed at improving prosecutorial decision making should seek to propagate this philosophy among new prosecutors and reeducate prosecutors who ascribe to conviction philosophy.
III. SHIFTING WEIGHT TO PROPER FACTORS
A. Existing Policy Recommendations
Academics have made several policy recommendations that seek to purify prosecutors' decision-making processes. One proposal is for legislatures to impose a three-factor ethical guideline for prosecutors when charging: prosecutors have to weigh their motivations, the decision's effect on the defendant, and its effect on society. (143) This proposal's proponent states that the "most important factor would be the motivations of the prosecutor himself in making the decision", but concedes that, "no one other than the prosecutor himself can be sure of the motives." (144) Currently, these guidelines "can only be enforce[d] to the extent prosecutors choose to apply them." (145) An unenforceable policy is of little use.
Another proposal would give prosecutors a financial bonus in every case except where a defendant successfully appeals his conviction based on the prosecutor's improper behavior. (146) Yet, by design, that measure would be activated only when the defendant already has a judicial route for relief and enough evidence to succeed on that route. A large amount of more subtle and small injustices would likely remain unnoticed and unopposed, as prosecutors likely make many decisions only partly based on invalid factors, (147) and those decisions would not rise to a level that makes them redressable under this policy.
There is a third approach. Given the general effect of experience, which shifts prosecutorial philosophies away from aggression and towards a proportionate, justice-seeking philosophy, (148) some academics recommend offices tailor their hiring, work assignment, and physical office arrangements to promote the interaction between younger and experienced prosecutors. (149) This approach seems promising for every office, except where the office as a whole has adopted and reinforced a conviction philosophy.
B. New Proposal: Mandatory "Strength-of-the-Evidence" Rating
There is a simpler way. Like the first policy discussed, (150) a "strength of the evidence" rating would provide a psychological check at the charging stage. Any legislature or executive could implement the requirement by simply requiring prosecutors, when making a charging decision (whether the choice is to charge at all, raise charges, or lower charges), to rate what they believe the strength of the evidence to be for the charge selected. If the prosecutors choose to charge, they must also rate the strength of the evidence for lessor included offenses and similar offenses with additional or less easily proved elements. Furthermore, on the paperwork or interface containing this rating, space should exist for prosecutors to include "Additional Factors" affecting their charging decisions. Finally, the resolution of the case should be recorded along with the rating for subsequent study.
This procedure would have several effects. First, it would expose charging decisions based primarily on improper factors. For example, prosecutors charging defendants based on personal animus will still have to rank the strength of the evidence. Failing to proffer a proper, believable, and significant ground for the charge will make the decision suspect. This documentation can be combined with previous evidence rankings to identify a flaw in the prosecutor's decision making, which can then be remedied by a supervisor. If a prosecutor lies about the strength of the evidence to cover unjust decision making, the charging decision will be highlighted as suspect when the outcome of the case does not match his rating of the strength of the evidence.
Smoking out faulty motives is not even the procedure's greatest effect. Evidence rating also would tie prosecutors to a single, consistent analysis structure that prioritizes the factors in accordance with the prosecutor's role. A prosecutor's initial duty is to determine if the evidence shows that the potential defendant committed the crime and to almost always prosecute where the answer is "yes." (151) Likewise, step one of evidence rating is to consider the evidence's strength. Yet, because a section exists for additional factors, the procedure allows prosecutors to sometimes diverge from the decision to prosecute even if the evidence is strong.
Finally, this procedure suppresses "conviction psychology" and conditions prosecutors to think according to a justice seeking philosophy. As mentioned before, a prosecutor with "conviction psychology," who operates without an evidence rating procedure, may approach a case with weak evidence as a challenge or an obstacle in the way of the mission. (152) In contrast, if he is bound by an evidence rating, it will condition him to see weak evidence as a reason cutting against the choice to prosecute. He will learn that to bring a charge that is poorly supported, he must have some other strong reason, and one that he is comfortable revealing to reviewing personnel. The procedure teaches him that his duty is not to prosecute every case as severely as possible, trusting the defense attorney to act as counterweight, but to prosecute cases only in proportion to their severity and the strength of the evidence. This evidence rating could also serve as a useful way to reeducate "zealot" prosecutors, who are not susceptible to the normal change in professional philosophy that comes with experience. (153)
Although prosecutors primarily look to case-related factors when making decisions, several implicit and explicit factors can skew their charging perception. Because it seems that the quality of a prosecutor's professional philosophy is the largest determinant of decision quality, a policy that trains prosecutors to be purely justice-seeking would effectively improve decision-making. Prosecutors would no longer be satisfied with catching only their worst mistakes. Therefore, "strength-of-the-evidence" ratings before charging decisions could condition prosecutors to follow a justice-seeking philosophy, enabling justice to become more understood, methodological, and pure.
(1) Abbe Smith, Are Prosecutors Born or Made?, 25 GEO. J. LEGAL ETHICS 943, 943-947 (2012).
(2) Id. at 944.
(3) Id. at 946 ("[that the defendant] 'stay away' from the playground, report weekly to the local pretrial services agency, and drug test weekly").
(6) See id. at 947.
(7) Smith, supra note 1, at 947.
(8) Id. (internal quotations omitted).
(9) Id. (internal quotations omitted).
(12) See Mark Larson, The Exoneration of Brandon Olehar, THE MARSHALL PROJECT (Feb. 13, 2015, 7:15 AM), https://www.themarshallproject.org/2015/02/13/the-exoneration-ofbrandon-olebar.
(15) Id. This presented no risk to those individuals because the statute of limitations had already expired.
(18) Larson, supra note 12.
(20) This is no easy task. Prosecutorial decision making has been dubbed "a 'black box,' the inner workings of which are hidden from public and legal scrutiny." Don Stemen & Bruce Frederick, Rules, Resources, and Relationships: Contextual Constraints on Prosecutorial Decision Making, 31 QUINNIPIAC L. REV. 1, 1 (2013). A good way to peak into the "black box" is to ask prosecutors directly about their decision making and compare that to actual case outcomes. See Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125, 129 (2008).
(21) Cf. Bruce Frederick & Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decisionmaking, NAT'L INST. JUST, iii (2012), https://www.ncjrs.gov/pdffilesl/nij/grants/240334.pdf (stating that case specific evidence is looked at first then criminal history and defendant characteristics are evaluated later).
(22) Id. at 2 (stating that the study breaks down internal and external mechanisms that facilitate prosecutor decision-making).
(23) Id. at 59.
(27) Frederick & Stemen, supra note 21, at 68-69.
(28) Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 NYU J.L. & LIBERTY 512, 513-14(2007).
(29) See id. at 517-20.
(30) See discussion infra Part I.B.4.
(31) See discussion infra Part I.B.3.
(32) See discussion infra Part I.C.
(33) Frederick & Stemen, supra note 21, at 61.
(35) See id. at 62-63.
(36) Id. at 63.
(38) Id at 64 (emphasis in original).
(39) Frederick & Stemen, supra note 21, at 65.
(41) Id at 65-66.
(42) Id. at 64.
(45) Frederick & Stemen, supra note 21, at 67.
(48) Id. (emphasis in original)
(49) Id. at 67.
(50) Id.; see discussion infra Part I.C.2.
(51) Frederick & Stemen, supra note 21, at 66 ("[Prosecutors ask] [s]hould I prove the case?").
(52) Id. at 68.
(53) See Larson, supra note 12 ("Because of his history and the fact that the victim identified him, Olebar seemed a likely suspect.").
(54) Frederick & Stemen, supra note 21, at 67 (reporting that prosecutors in a research focus group said that they use long criminal records to "get the jury excited' about otherwise minor cases).
(55) Id. at 68.
(58) Id. (emphasis in original).
(59) Id. at 69.
(60) Frederick & Stemen, supra note 21, at 69.
(62) Id. at 69-70.
(64) Id. at 70.
(66) Frederick & Stemen, supra note 21, at 65.
(67) Id. at 65-66.
(68) See, e.g., Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587 (2006); Huang Shiyuan, Cognitive Biases That Lead to Wrongful Convictions: Illustrated by Twenty-Three Erroneous Chinese Cases, 54 CAL. W.L. REV. 103 (2017); Ian Weinstein, Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making, 9 CLINICAL L. REV. 783 (2003); Sofia Yakren, Removing the Malice from Federal "Malicious Prosecution ": What Cognitive Science Can Teach Lawyers About Reform, 50 HARV. C.R.-C.L. L. REV. 359 (2015).
(69) Cf. Burke, supra note 68, at 1590 ("They are irrational because they are human, and all human decision makers share a common set of information processing tendencies that depart from perfect rationality.").
(70) Id. at 1593-94.
(71) Burke, supra note 28, at 516-17.
(72) Id. at 517-18.
(73) Id. at 518.
(74) Id. at 513, 518-19.
(75) See Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CAL. L. REV. 945, 948 (2006).
(76) Id. at 961.
(77) See Frederick & Stemen, supra note 21, at 68.
(78) See P.S. Kane, Why Have You Singled Me Out? The Use of Prosecutorial Discretion for Selective Prosecution, 67 TUL. L. REV. 2293, 2297-98 (1993).
(79) Sandra Caron George, Prosecutorial Discretion: What's Politics Got to Do with It?, 18 GEO. J. LEGAL ETHICS 739, 752 (2005).
(80) Id. at 739-40.
(81) Carrie Leonetti, When the Emperor Has No Clothes III: Personnel Policies and Conflicts of Interest in Prosecutors' Offices, 22 CORNELL J. L. & PUB. POL'Y 53, 64 (2012).
(82) See id. at 77-81.
(83) See Kay L. Levine & Ronald F. Wright, Prosecutor Risk, Maturation, and Wrongful Conviction Practice, 42 LAW & SOC. INQUIRY 648, 650-52 (2017).
(84) See id. at 652-54.
(85) See id.
(86) See Ronald F. Wright & Kay L. Levine, The Cure for Young Prosecutors' Syndrome, 56 ARIZ. L. REV. 1065, 1081-84(2014).
(87) Id. at 1081.
(88) See id.
(89) See id. at 1083.
(90) See id. at 1081-85.
(91) See id.
(92) Wright & Levine, supra note 86, at 1083-84.
(93) Id. at 1065.
(95) Id. at 1096-97.
(96) See id.
(97) Id. at 1083.
(98) See Frederick & Stemen, supra note 21, at 72.
(99) See Mat 71-75, 87.
(100) See Leonetti, supra note 81, at 65.
(102) Id. at 63-64.
(103) See id.
(104) Frederick & Stemen, supra note 21, at 88.
(105) Mat 88-91.
(106) Id. at 92.
(108) See id. at 4.
(109) Id. at 98-99.
(110) Frederick & Stemen, supra note 21, at 98-100.
(112) See id. at 100.
(114) Id. at 101.
(115) Id. at 102-103.
(116) Frederick & Stemen, supra note 21, at 104.
(117) Id. at 101.
(118) Id. at 106-07, 110.
(119) Id. at 110.
(120) Id. at 110 (emphasis in original).
(121) Id. at 107.
(122) Frederick & Stemen, supra note 21, at 107-108.
(123) Id. at 112.
(124) Id. at 113-14.
(125) Id. at 114.
(126) Id. at 113.
(127) Id. at 64.
(128) Frederick & Stemen, supra note 21, at 64.
(129) Larson, supra note 12.
(130) MODEL RULES OF PROF'L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS'N 1983).
(131) Smith, supra note 1, at 945 n.9 (quoting ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION [section] 3-1.2(c) (ABA 3d ed., 1993)).
(132) See Justice, BLACK'S LAW DICTIONARY (10th ed. 2014) ("1. The fair treatment of people. 2. The quality of being fair or reasonable. 3. The legal system by which people and their causes are judged; esp., the system used to punish people who have committed crimes. 4. The fair and proper administration of laws."); Shiyuan, supra note 68, at 112-13.
(133) See Shiyuan, supra note 68, at 105.
(134) George, supra note 79, at 752.
(135) Cf. Frederick & Stemen, supra note 21, at 116 (external constraints "may trump evaluations of strength of the evidence, severity of the offense, and defendant criminal history, forcing Prosecutors to make decisions that they may not [otherwise] make").
(136) Cf. id. ("[C]ases do not exist in a vacuum.").
(137) See id. at 88.
(138) Id. at 95-96.
(139) See id. at 25-28.
(140) See Wright & Levine, supra note 86, at 1084-85.
(141) See discussion supra Part II.B.i.
(142) See Wright & Levine, supra note 86, at 1069.
(143) Brandon K. Crase, When Doing Justice Isn't Enough: Reinventing the Guidelines for Prosecutorial Discretion, 20 GEO. J. LEGAL ETHICS 475, 483-85 (2007).
(144) Id. at 484-85.
(145) Id. at 485.
(146) Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851, 902 (1995)
(147) Cf. Frederick & Stemen, supra note 21, at 116 (stating that prosecutors make decisions using multiple factors, internal and external, to the case).
(148) Wright & Levine, supra note 86, at 1081.
(149) Id. at 1117.
(150) See supra text accompanying notes 143-45.
(151) See Frederick & Stemen, supra note 21, at 60.
(152) Levine & Wright, supra note 83, at 664-65.
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|Publication:||Law and Psychology Review|
|Date:||Jan 1, 2019|
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