More Warrant Stuff

Now, Where Was I. . .

Well, OK, after reviewing where I was when I last posted (really, I want to update this more than once a week, the day job just hasn't cooperated) we were talking about how a request for a warrant is review and authorized. So far, we've talked about two, general, standards for authorization of criminal charges. The first is mere probable cause that the suspect committed the crime. The second, and most common in my experience, is the likelihood of proving the case to a jury, beyond a reasonable doubt. There is a third standard that may be used, depending on the philosophy of the head prosecutor. In my own mind I call it the "certainty of conviction" standard.

Now, whenever a jury is involved, there is no such thing as a sure thing. There just isn't. In our system of adversarial trial there is this little doctrine that prosecutors hate to talk about called jury nullification.

Stand By, Digression Ahead!

What that means, essentially, is that the jury, as the conscience of the community, can ignore its oath and acquit the defendant regardless of how overwhelming the evidence against him is. The most famous example of mass jury nullification involves the fugitive slave law of 1850. This law required all citizens to assist in the recapture of fugitive slaves, regardless of whether slavery was legal in state where the alleged offense occurred or not. Northern juries routinely acquitted abolitionists who were charged under that law. There are legal historians who believe the modern judicial hostility to jury nullification originated in this era. But see this site for more than you probably want to know about the subject. Suffice it to say, a jury can acquit for any reason, or for no reason, and the verdict is immune to attack.

Brace For De-Digression!

As I was saying, there is no 100% certain verdict in any trial, let alone a criminal prosecution with the beyond a reasonable doubt burden of proof. But an experienced trial attorney, assisted by experienced investigators, can generally come up with a pretty fair idea of what a typical jury in her jurisdiction will do. When applying this standard, review and authorization may take substantially longer, but the final decision to charge is going to be as close to a lock as it ever gets. So, given the time and effort it takes to apply this standard, when would an over-worked, under-staffed government bureaucracy ever invoke it?

There are those cases where an elected prosecutor (and almost all of them are elected) will tread very carefully before authorizing a felony warrant. Some examples, cases where prominent local politicians or citizens are accused of particularly nasty crimes, cases where a bad guy winds up dead at the hands of a citizen under suspicious circumstances, cases were the victim is a popular or highly sympathetic figure, or the suspect is a popular or highly sympathetic figure, that sort of thing. Basically, cases where you need to win if you charge it.

On the other hand, some times the suspect is so well known, etc. that your discretion not to charge is severely limited. Does anyone think O. J. wasn't going to be charged with something after the slow-speed chase?

Next time: What happens after the darn thing is authorized?