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Prosecutorial Discretion

By Dolores A. Carr

      The role of a prosecutor is to represent the people of the state. The prosecutor ensures that victims' rights and interests are protected and that criminals are punished.
      Representing the people means that the prosecution strives to respect the public interest, including the interests of crime victims and accused people. The prosecutor's goal is thus not to win at all costs but to reach a just result.
      The prosecutor has tremendous discretion in deciding how best to accomplish that goal. Prosecutors are bound by state and federal constitutional and statutory law in the exercise of their duties.
      However, prosecutors enjoy significant discretion in deciding whom to charge, which charges to file and which penalties to seek, on obtaining a conviction. This article discusses the proper scope of that discretion and the extent to which it may be supervised by the courts.
      The objective of this article and self-study test is to familiarize readers with the legal and ethical restraints on prosecutorial discretion. By reading the article and taking the test, readers will learn about four specific constraints that limit and guide the prosecution's discretion, which are enforceable by both the courts and the prosecutor's ethical duties.
      The four constraints are (1) the limit of separation of powers, (2) the prosecutor's duty to withdraw in limited situations, (3) the prohibition against invidious or discriminatory prosecution (Murgia) and (4) the bar against prosecutorial vindictiveness.

      Separation of Powers
      Our Constitution delineates the role of the executive, legislative and judicial branches. See California Constitution, Article III, Section 3. As part of the executive branch, the prosecutor enforces the law by deciding whom to charge and which charges to file.
      In deciding whether to file charges, California prosecutors rely on California Rule of Professional Conduct 5-110: "A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending."
      So long as the prosecutor is exercising discretion in making a charging decision, that decision does not violate separation of powers. Thus, the prosecutor's decision about the type and number of crimes to charge is ordinarily not subject to judicial review. See People v. Cortes, 71 Cal.App.4th 62 (1999). This is true even if the prosecutor's decision concerning which charges to file constricts the sentencing options available to the courts. See Davis v. Municipal Court, 46 Cal.3d 64 (1988). For example, the prosecutor may decide to file a charge alleging use of a firearm even though that decision forecloses the court's ability to grant probation. See People v. Tanner, 24 Cal.3d 514 (1979).
      The separation-of-powers doctrine comes into play after charges are filed. Once "the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature." People v. Tenorio, 3 Cal.3d 89 (1970). After charges are filed, the prosecution may not exercise a veto over the court's powers by, for example, barring the court from dismissing a "strike" prior (People v. Superior Court (Romero), 13 Cal.4th 497 (1996)), or barring a court from reducing a "wobbler" to a misdemeanor (Esteybar v. Municipal Court, 5 Cal.3d 119 (1971)).

      Sometimes, the prosecution is so embroiled in the subject matter or individuals involved in a case that it must decline to prosecute. The disqualification of a prosecutor is referred to as a recusal.
      A conflict of interest may require recusal of an individual prosecutor (for example, when the defendant is a friend of the prosecutor assigned to the case) or of the entire prosecutor's office (for example, where the defendant is an employee of the district attorney). When the entire office is recused, the attorney general takes over the prosecution.
      Penal Code Section 1424(a)(1) requires recusal when "the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." The conflict must be more than apparent; it must be actual. "The statute does not allow disqualification because participation of the prosecutor would be unseemly, appear improper, or even reduce public confidence in the criminal justice system. An actual likelihood of prejudice to defendant must be shown. Recusal cannot be warranted solely by how a case may appear to the public." Millsap v. Superior Court, 70 Cal.App.4th 196 (1999). The defendant must show evidence that the conflict is so grave that it is unlikely that the prosecutor's office will exercise its discretionary functions in an even-handed manner. People v. Eubanks, 14 Cal.4th 580 (1996); People v. Hamilton, 46 Cal.3d 123 (1988).
      Although in many cases the issue of recusal is straightforward, there are some difficult areas. For example, a family relationship between a prosecutor in an office and a defendant may warrant recusal. See People v. Vasquez, 39 Cal.4th 47 (2006) [recusal required where family relationship of a deputy district attorney to defendants influenced the decisions of the district attorney's office in handling the case]).
      When one prosecutor in an office previously represented the defendant, the court may decide to recuse the entire office. However, in some cases the office can continue with the case after erecting barriers between the affected prosecutor and the trial prosecutors assigned to handle the case. See People v. Lopez, 155 Cal.App.3d 813 (1984); Chadwick v. Superior Court, 106 Cal.App.3d 108 (1980); but see People v. Clark, 5 Cal.4th 950 (1993) [where the elected district attorney represented a capital defendant, the entire office was recused]).
      Although a prosecutor cannot try a case in which he or she is a witness, the rule does not necessarily mandate recusal of the entire office. In one memorable case, prosecutors were allowed to try defendants for various offenses but were recused from that portion of the case charging defendants with having solicited someone to murder those very prosecutors. The Court of Appeal allowed other members of that prosecutor's office to present those counts to the jury. Millsap.

      Discriminatory Prosecution (Murgia)
      Both the 14th Amendment of the United States Constitution and Article I, Section 7 of the California Constitution guarantee due process and equal protection of law. Discriminatory enforcement of penal statutes denies the defendant that equal protection and is therefore unconstitutional. See Murgia v. Superior Court, 15 Cal.3d 286 (1975).
      The California Supreme Court held in Murgia that, "[i]n order to establish a claim of discriminatory enforcement, a defendant must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidious criterion. Because the particular defendant, unlike similarly situated individuals, suffers prosecution simply as the subject of invidious discrimination, such defendant is very much the direct victim of the discriminatory enforcement practice. Under these circumstances, discriminatory prosecution becomes a compelling ground for dismissal of the criminal charge, since the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities."
      A claim of discriminatory prosecution is adjudicated by the court, not by a jury. See People v. Betts, 34 Cal.4th 1039 (2005). The defense must establish that (1) the defendant has been deliberately singled out for prosecution on the basis of some invidious criterion, and (2) that the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities. See, for example, Baluyut v. Superior Court, 12 Cal.4th 826 (1996).
      The defendant bears the initial burden of proof to establish a prima facie case that the prosecution resulted from discrimination. Once a prima facie case is made, the burden shifts to the prosecution to rebut the presumption of discrimination. The prosecution must establish that the action was pursued for legitimate nondiscriminatory reasons. If the prosecution offers a nondiscriminatory explanation, the defendant is permitted to show that the proffered reason was untrue. If the defendant proves by a preponderance of the evidence that the prosecution likely was motivated by discrimination, the case is dismissed.
      Demonstrating discriminatory prosecution requires more than showing that other people who were committing similar offenses were not prosecuted. For example, if an unlawful practice is being committed throughout an industry, prosecutors are entitled to select one or more of those companies for enforcement without prosecuting all of them. See Pacific Bell Wireless LLC v. Public Utilities Com'n of State of California, 140 Cal.App.4th 718 (2006). Similarly, the fact that other prosecutors might use different charging standards does not present an equal-protection claim. See People v. Andrews, 65 Cal.App.4th 1098 (1998). For example, imposition of third strike by one prosecutor's office does not constitute a Murgia violation even if other prosecutors' offices do not charge the underlying offense as a third strike in similar cases.
      However, a showing that similarly situated people were not charged, if made with sufficient particularity and supported by substantial evidence that the basis for the selection was invidious, may justify further defense discovery on a Murgia claim. Compare People v. Williams, 46 Cal.App.4th 1767 (1996), with People v. Superior Court (Baez), 79 Cal.App.4th 1177 (2000).

      Prosecutorial Vindictiveness
      The constitutional guarantees of due process and equal protection under the law bar prosecutors from penalizing defendants for exercising their legal rights. "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort." Bordenchircher v. Hayes, 434 U.S. 357 (1978). If the defense proves that the prosecution acted with such subjective motivation, a court may impose sanctions, including dismissal.
      There is no presumption of vindictiveness when the prosecution increases the charges or the potential penalty before trial. Rather, the defendant must "prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do." People v. Jurado, 38 Cal.4th 72 (2006). This is difficult to prove because the law recognizes that prosecutors use their charging discretion to encourage early guilty pleas. That a prosecutor adds new charges or seeks an indictment after the defendant refuses a plea bargain does not create such a presumption. "While a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule." U.S. v. Goodwin, 457 U.S. 368 (1982).
      However, the same conduct after the defendant successfully appeals may create such a presumption. "An inference of vindictive prosecution is raised if, upon retrial after a successful appeal, the prosecution increases the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial." People v. Ledesma, 39 Cal.4th 641 (2006).

      Our criminal justice system provides prosecutors with significant but limited discretion. The restraints on the prosecutor's power discussed in this article ensure that our criminal justice system works for all.
      Dolores A. Carr is the Santa Clara County district attorney.

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