Questions About the Criminal Justice System We Can't Answer

Posted on May 19, 2016 by Rob McKinney

The Marshall Project provides excellent commentary regarding the criminal justice system. A recent post was titled 13 Important Questions About  Criminal Justice We Can't Answer. Today's post focuses on one question. How many criminal cases are referred to prosecutors and how do they decide which to pursue.

I have never been a prosecutor so I know little of the internal workings of case evaluation in various district attorney's offices. My insight is solely from a criminal defense lawyer's perspective. Most cases are referred to the district attorney's office by law enforcement.

The most common method for case going to the district attorney's office for prosecution is an arrest warrant. After an arrest warrant is taken out, the case is docketed. An assistant district attorney will review the facts contained in the arrest warrant.The assistant district attorney (ADA) will then make a decision to prosecute the case, offer a plea bargain, or dismiss the case. I am not aware of any readily available data of the percentage of the cases they actually pursue.

In criminal cases in Nashville, Tennessee, the court may be reset to have police officers subpoenaed or private witnesses present. At the trial date, the ADA will interview any potential witnesses to further evaluate the case. if the case can't be resolved a preliminary hearing should be conducted by the defense lawyer. It is a great opportunity to demonstrate some potential weaknesses in the case.

The case is also reviewed by the district attorney during the grand jury process. 

Again, there is no raw data available if the case is screened and who decides on whether to present the case to the grand jury. On rare occasions, the local grand jury can find there is sufficient evidence and refuse to return an indictment. Interestingly, the prosecutors in Cheatham County will sometimes allow the defendant to testify at the grand jury proceeding.

In some cases, law enforcement can present the cases directly to the grand jury for a sealed indictment. It is most commonly used in sex crimes , rape of a child, and aggravated sexual battery. The district attorney's office reviews child sex cases with a team approach with the use of police, an ADA, and an investigator of the Department of Children's Services.

In answering the question posed by the post, there is insufficient data to answer the question. The main takeaway is the power of the local district attorney's Office in deciding which cases to pursue and which cases to drop.

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