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Prosectutor Ethics - Evidence of Guilt

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Prosecution Ethics

Evidence of Guilt

The simple fact is that no, a prosecutor does not need to have legally sufficient evidence to bring criminal charges. "Sufficient evidence" is something which must be determined by a trier of fact. However, to make sure that a prosecutor does have ample evidence to justify a defendant being bound over for trial on a criminal charge----the court allows the defendant to have a Preliminary Hearing in certain circumstances. This hearing follows the arraignment and is an opportunity for the defendant to have a mini-trial. The prosecutor at the Preliminary Hearing must show to the judge that there is probable cause to believe that a defendant has acted in violation of the law as they are charged. This is a low burden---quite unlike the requirement in a criminal trial that requires a defendant to be found guilty "beyond a reasonable doubt".

Now, there is another way a defendant can be brought to trial and that is to be indicted by the Grand Jury. If a prosecutor goes before a grand jury to seek an indictment, the defendant does not have the right to a preliminary hearing, and if the grand jury returns an indictment, the defendant will proceed directly to trial. Clearly it is not ethical for a prosecutor to file charges against an individual if there are insufficient facts to convince the prosecutor of the defendant's participation is a crime. However, the amount of evidence needed by the prosecutor to bring up the charge is not as much evidence as will be needed to convict.

A prosecutor's "gut" feeling is insufficient to file criminal charges, and to do so under that circumstance would arguably be an ethical violation unless it is supported by other evidence sufficient to allow the prosecutor to believe that he or she will be able to convict the defendant before a judge or jury. However, because it is not the prosecutor who actually determines what constitutes a sufficient amount or type of evidence to prove the guilt of a defendant, the prosecutor must leave to the trier of fact---the trial judge or the jury----that factual determination.

If the prosecutor believes the person to be guilty, but does not have some evidence of guilt to justify the filing of the criminal charges, yet files those charges anyway, then the Prosecutor's actions in filing would be unethical.

Considerations and Discretion

Police officers have to typically initiate the process of the criminal investigation for the alleged crime and proceed with the arrest. However, the prosecuting party largely enjoys the discretion to determine, if any, filed charges toward a defendant. Prosecutors cannot, unless probable cause, file any criminal charges against a defendant just to believe in the individuals' guilt. This type of action can only happen if enough evidence is proven against the individual accused of the criminal activity. Once police officers complete the investigation the prosecuting party is to review all evidence and facts to proceed with a charge, if any. Some prosecution services act for families and victims but most do not. Majority of prosecutors act for the public and not for a particular individual. The legitimate factors into a decision to charge an individual with a crime are based upon the files presented and the evidence to make a prosecuting decision.

When prosecutors find a realistic prospect for a conviction, the next step is to see if it is within the best interest of the public to prosecute the defendant. The most important factor of a prosecution is the victim. All prosecutors will not victimize the constitutional rights of the public and will consider the views expressed by the family of the victim or the actual victim.

Most individuals today have a small criminal record; however, criminal records should be excluded because just because one has a criminal record does not mean he or she is the prime suspect within the case. People cannot stereo type based upon past police reports or minor convictions. Ethnical issues such as see at the crime but not doing the crime should be excluded. However, within most cases if one was seen leaving the crime it will still make them a suspect unless a proven alibi. The considerations of stereo typing are the most important fact to exclude from the discretion because one is intent to point the finger based upon past convictions.

Plea Bargaining

There are many reasons a plea bargain may be used in the criminal justice system. A plea bargain is where the defense and the prosecution come to an agreement based off of a deal. Many factors determine a plea bargain including the strength and the public attention of the case. There are also Pros and Cons to plea bargains in the justice system.

The pros for the defendant or justice system may outweigh the cons in plea bargaining due to amount of cases seen by the prosecution. Some examples of positives in plea bargaining are, (1) lack of evidence, (2) no lengthy court process, and (3) manageability of case loads.

The lack of evidence on a defendant who is more than likely guilty may not convince a jury therefore allowing the criminal to walk free or on the other hand, have to serve hard time. It is to the benefit of the defendant as well as the prosecutor for a case to settle on a plea bargain.

Plea bargaining allows for cases to settle quickly therefore freeing up the courts and not having the defendant dragged through a lengthy process that could be timely and expensive. Not arranging a plea bargain may result in the defendant going to trial and then having to testify which could harm either party. Plea bargaining also helps the court and prosecutors manage the case loads which ultimately gives the defendant the right for a speedy trial. Aside from statue, it is in the Bill of Rights in the Constitution that the right to a speedy trial is ensured.

Those opposing the idea of a plea bargain state the system may put a lot of pressure on defendants to admit to guilt even if they are innocent from



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