The Prosecutor makes the final decision as to a person’s charges

Posted by Richard Lawson | Jul 20, 2017 | 0 Comments

In the American justice system, the prosecutor ultimately decides whether to prosecute someone and for what offense or offenses.

When the police make an arrest, the arrest is a mere accusation of a crime. The standard of proof required to make an arrest is whether there is probable cause that someone has committed a crime.

Probable cause is a low standard of proof. It is even less than the civil standard of proof, which is a preponderance of the evidence. As a result, a police officer need not even have proof that it is more likely than not that a crime has occurred.

For a police officer to have probable cause to make an arrest, he or she must reasonably believe “a man of reasonable caution that a crime is being committed.” Brinegar v. United States 338 U.S. 160 (1949).

The prosecution cannot rely on mere probable cause. They have to present proof, beyond a reasonable doubt, to a jury that a crime has occurred.

As a result, sometimes the State must dismiss the case of someone they believe is likely guilty when they have insufficient evidence to prove guilt beyond all reasonable doubt. Even though a police officer had probable cause to make an arrest, the case cannot be sufficiently proved to get a conviction in court.

In other circumstances, the State's attorney may decide to change a person's charges. In Georgia, the District Attorney, in felony cases, or the Solicitor General, in misdemeanor cases, has the authority to amend any criminal charge. Additionally, the prosecutor can add charges for which a person had never even been arrested.

Moral and Ethical Responsibility of Prosecutors:

The power to prosecute is awesome. I remember thinking so when I was a young prosecutor in North Georgia.

It is important for prosecutors to remember that winning their cases is not their first duty. The duty of a prosecutor is to justice and fairness. It is not to win their cases at all cost. Most prosecutors fully understand their ethical role.

However, a few (usually young) prosecutors forget that it is far better to let a guilty person free than to allow an innocent person to be found guilty.

As a society, we all focus far too much on winning. As defense attorneys, we have a clear duty to our clients. I would remind young prosecutors that your duty is to protect the rights of even the accused. Only then will our prosecutors make the right decision whether to prosecute.

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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