The screening of cases and charging of defendants is one of the most important of the district attorney's responsibilities. In deciding whether or not to charge an individual, the district attorney must consider a number of factors. The district attorney must devote his time to those important cases that will have the greatest impact on the community at large. At the same time, the district attorney must be careful to abide by the ethical responsibility he has to not endanger the reputation of an individual unless such is based on a solid foundation of evidence. Unlike the defense attorney who must zealously represent his or her client, the district attorney's goal is to make sure justice is served. The American Bar Association, in their Code of Professional Responsibility and the National District Attorneys Association, in their National Prosecution Standards have set standards for the performance of these duties.
Screening
Screening is the process by which the district attorney determines if charges may be brought against an individual.
The district attorney must follow a number of guidelines when determining which individuals should be charged with which crimes. These guidelines include insufficiency of evidence, the age of the case, and undue hardship caused to the accused. The district attorney must also be willing to share information and reconsider new information. In addition, the district attorney should explain the screening program to victims, witnesses, and law enforcement officials so that not only is justice done, but the people involved understand the result.
Charging
Charging is the process by which the district attorney determines the crimes an individual is accused of committing.
The district attorney must determine which charges are to be filed and brought before the grand jury or the court. The district attorney must file charges appropriate to the offense and which are supported by the evidence. The district attorney must consider the likelihood of conviction, the interests of the victim, the availability of adequate civil remedies, and any mitigating circumstances to determine which charges are to be brought against the defendant.
Ethical Considerations
These are the ethical obligations the district attorney is bound by during the criminal charging process
A district attorney general has a legal as well as an ethical duty to furnish the accused with exculpatory evidence or favorable information; and he has both a legal and an ethical duty to refrain from suppressing such evidence, to correct the false testimony of a prosecution witness, and to refrain from using false evidence to convict an accused. State v. Spurlock, 874 S.W. 2d 602 (Tenn. Crim. App. 1993).
Screening (From the National District Attorney's Association's Manual on National Prosecution Standards)
42.1 Prosecutorial Discretion
The decision to initiate or pursue criminal charges should be within the discretion of the prosecutor.42.2 Guidelines
The prosecutor should establish, maintain, and follow guidelines in the exercise of the discretion in screening criminal charges.42.3 Factors to Consider
The prosecutor should exercise discretion in screening for the purpose of eliminating matters from the criminal justice system in which prosecution is not justified or not in the public interest. Factors which may be considered in this decision include:
a. Doubt as to the accused's guilt;
b. Insufficiency of admissible evidence to support a conviction;
c. Reluctance of a victim to cooperate in the prosecution;
d. Possible improper motives of a victim or witness;
e. The availability of adequate civil remedies;
f. The availability of suitable diversion and rehabilitative programs;
g. Provisions for restitution;
h. Likelihood of prosecution by another criminal justice authority;
i. Aid to other prosecution goals through non-prosecution;
j. The age of the case;
k. The attitude and mental status of the accused;
l. Undue hardship caused to the accused;
m. A history of non-enforcement of the applicable violation;
n. Failure of law enforcement agencies to perform necessary duties or investigation;
o. The expressed desire of an accused to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, and the prosecutor and his personnel, where such desire is expressed after the opportunity to obtain advice from counsel and is knowing and voluntary;
p. Any mitigating circumstances.42.4 Factors Not to Consider
Factors which should not be considered in this decision include:
a. The prosecutor's rate of conviction;
b. Personal advantages which prosecution may bring to the prosecutor;
c. Political advantages which prosecution may bring to the prosecutor;
d. Factors of the accused legally recognized to be deemed invidious discrimination insofar as those factors are not pertinent to the elements of the crime.42.5 Information Sharing
The prosecutor should have for his consideration all relevant information that would aid in rendering a sound decision as to screening. Other government and law enforcement agencies should cooperate in providing the prosecutor with such information.42.6 Reconsideration of New Information
In the event previously unobtained information is provided to the prosecutor, he should review the screening decision based on the new information.42.7 Record of Decision
A record of the screening decision and reasons for the screening disposition of each matter should be retained by the prosecutor.42.8 Defense of Decision
The prosecutor should promptly respond to inquiries from those who feel aggrieved by the screening procedure and decision.42.9 Explanation of Screening Program
The prosecutor should provide adequate explanations and information regarding the purposes and operation of any screening programs to victims, witnesses, and law enforcement officials in the jurisdiction.
43.1 Prosecutorial Discretion
In the exercise of the discretion to prosecute, the prosecutor should determine which charges should be filed and how charges should be presented before a grand jury or court.43.2 Propriety of Charges
The prosecutor should file charges which adequately encompass the offense or offenses believed to have been committed by the accused.43.3 Charges Substantiated by Evidence
The prosecutor should file only those charges which he reasonably believes can be substantiated by admissible evidence at trial.43.4 Inappropriate Leveraging
The prosecutor should not attempt to utilize the charging decision only as a leverage device in obtaining guilty pleas to lesser charges.43.5 Civil Liability
The prosecutor should not file charges for the purpose of obtaining from a defendant a release of potential civil claims against victims, witnesses, law enforcement agencies and their personnel, or the prosecutor and his personnel.43.6 Factors to Consider
The prosecutor should exercise his discretion to file only those charges which he considers to be consistent with the interests of justice. Factors which may be considered in this decision include:
a. The probability of conviction;
b. The nature of the offense;
c. The characteristics of the offender;
d. Possible deterrent value of prosecution to the offender and society in general;
e. Likelihood of prosecution by another criminal justice authority;
f. The willingness of the offender to cooperate with law enforcement;
g. Aid to other criminal justice goals through non-prosecution;
h. The interests of the victim;
i. Possible improper motives of a victim or witness;
j. The availability of adequate civil remedies;
k. The age of the offense;
l. Undue hardship caused to the accused;
m. A history of non-enforcement of a statute;
n. Excessive cost of prosecution in relation to the seriousness of the offense;
o. Recommendations of the involved law enforcement agency;
p. The expressed desire of an offender to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, and the prosecutor and his personnel, where such desire is expressed after the opportunity to obtain advice from counsel and is knowing and voluntary; and
q. Any mitigating circumstances.
Ethical Considerations (From the American Bar Association Code of Professional Responsibility)
EC 7-13. The responsibility of a public prosecutor differs from that of the usual advocate; the public prosecutor's duty is to seek justice, not merely to convict. This special duty exists because:
(1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute;
(2) during trial the prosecutor is not only an advocate but also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and
(3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts.
With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence, known to the prosecutor, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because the prosecutor believes it will damage the prosecutor's case or aid the accused.
A district attorney general has a legal as well as an ethical duty to furnish the accused with exculpatory evidence or favorable information; and he has both a legal and an ethical duty to refrain from suppressing such evidence, to correct the false testimony of a prosecution witness, and to refrain from using false evidence to convict an accused. State v. Spurlock, 874 S.W. 2d 602 (Tenn. Crim. App. 1993).