Chapter 6 - Case Assessment, Case Attrition, and Decision to Charge

Abstract

Case assessment involves legal reasoning, categorization of cases as conforming or exceptional, prioritization of cases, and consideration of the extra-legal factors in order to decide if the case should proceed toward trial and how to best prepare it in the event that it does. Case mobilization is the movement of a case from police booking through the preliminary hearings to trial or another disposition. Prosecutors assess cases with the objective of increasing their confidence that a crime occurred, that the accused committed the crime and had culpability, and that the case could be won in trial. Defense works with the objective of casting doubt on the prosecutors’ cases. The prosecutor filters the assessment through the screen of due process, and the defense must filter the assessment through the law of the land. Legal reasoning frames how to assess evidence and prepare a case for trial. It requires that the lawyers evaluate the culpability of the defendant in terms of statutes and the alleged crime itself. It requires that they establish and enunciate specifically what law was supposedly violated and what defense is being asserted, and that they clearly identify which facts are relevant. It requires that they follow the rules of procedure, such as participation in discovery and the rules of evidence, many of which are established in precedent. Attorneys on both sides must look through this precedent frame and try to determine what evidence is probably admissible and what might get suppressed. Use of focal concerns enables attorneys to process a large number of diverse cases more expeditiously by categorizing them as “conforming” or “exceptional,” then prioritizing them. Official courthouse procedures directly influence how attorneys assess a case and prepare for each preliminary stage and the eventuality of trial. This includes case-screening protocols, deadlines, use of grand juries, jury selection, rules of evidence and motions, inclusion of victims, and availability of diversionary programs. Prosecutorial discretion is the capacity to make choices regarding a case, including to charge or dismiss a case, divert a case, change charges, plea bargain, develop a case theory, argue a case, and recommend leniency or the maximum sentence. Some observers argue that prosecutors need more discretion to control crime effectively. Others argue the large degree of prosecutorial discretion already weakens the rule of law and allows for abuse of government power and inequality. In assessing a case, the prosecutor asks the legal sufficiency question: “Could this case be prosecuted?” The trial sufficiency or trial-outcome questions include: “Could this case be won in trial?” The system efficiency, social good and justice, and aspiration questions ask: “Should this case be prosecuted?” Overcharging is when prosecutors position themselves for plea bargaining by charging the maximum criminal offense the elements of the crime will justify and include the lesser offenses justified by the evidence. If the highest charge does not lead to a conviction, perhaps one of the lower ones will. The maximum charge induces defendants to file a vertical plea. The evidence does not meet the elements requirement; a conviction at trial is uncertain; witnesses are not cooperating or credible or cannot be located; the defendant is wealthy or the defense attorney is tough; the defendant is not considered a threat to the community; the defendant has favorable cues; the law has not been enforced for a long time; office priorities are directing resources to other cases; the voting public opposes the trial. Obstacles for defense attorneys’ assessment and case preparation include the following: the prosecutor files the charges, and the defense must react to those and assess their veracity; the police are less cooperative with defense; many in the criminal justice system operate with a presumption of guilt of those charged with a criminal offense; the prosecutor may not disclose all relevant information during discovery; the defense attorney may be given cases they have no experience or interest in; the defense attorneys have less money and resources than police and prosecutors. A motion is a request that the judge make a legal ruling on a limited legal issue in the case without a ruling on the case-in-chief. An objection questions the legality of the opponent’s case but is presented during the trial proceedings in direct response to something the other attorney presents. The defense may carry a slight advantage on motions and objections because judges and prosecutors generally want to avoid one of their cases being appealed and may therefore be inclined to grant defense motions and objections. Motions also may resolve problems more expeditiously than could be done in front of a jury and may facilitate a plea negotiation.