The Charging Decision. Ethical and Legal Limitations

The Charging Decision. Ethical and Legal Limitations

The Charging Decision. Ethical and Legal Limitations

  1. bestmilitarydefensedefenseattorneys9.54.00PMcopyEthical Limitations.
    1. Charges must be warranted by the evidence.
      1. Army Reg. 27-26, Rule 3.8(a), provides that a trial counsel shall “recommend to the convening authority that any charge or specification not warranted by the evidence be withdrawn.”
      2. ABA Standards, Standard 3-3.9(a), provides that “a prosecutor should not . . . cause to be instituted, or permit the continued pendency of criminal charges” in two circumstances: (a) When the prosecutor knows that the charges are not supported by probable cause, or (b) In the absence of sufficient admissible evidence to support a conviction.
    2. A supervising prosecutor cannot compel a subordinate to prosecute an offense about which the supervisor has a reasonable doubt as to the guilt of the accused. ABA Standards, Standard 3-3.9(c). Cf. R.C.M. 307(a) discussion.
    3. Charges should not be unreasonably multiplied.
      1. Nature of Charges. What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person. R.C.M. 307(c)(4). Cf . ABA Standards, Standard 3-3.9(f) (A prosecutor should not “seek charges greater in number or degree . . . than are necessary to fairly reflect the gravity of the offense”).
      2. Prosecutorial Motive. A prosecutor should not “pile on” charges to “unduly leverage an accused to forego his or her right to trial.” ABA Standards, Standard 3-3.9 commentary.
  2. Constitutional Limitations.
    1. A prosecutor cannot selectively prosecute an individual because of “race, religion, or other arbitrary classification.” Wayte v. United States , 470 U.S. 598 (1985). Accused must show more than a mere possibility. United States v. Hagen, 25 M.J. 78 (C.M.A. 1987).
    2. A prosecutor cannot vindictively prosecute to penalize an individual’s exercise of constitutional or statutory rights. Blackledge v. Perry , 417 U.S. 21 (1974).