One Method for Making the Charging Decision

One Method for Making the Charging Decision

One Method for Making the Charging Decision

  1. bestmilitarydefensedefenseattorneys9.53.40PMProsecutorial Discretion. Even in the absence of any formal limitations, it is important to remember that there is no ethical or legal obligation to plead all possible charges that the evidence might support. Compare ABA Standards, Standard 3-3.9(b) (listing factors properly considered in exercise of prosecutorial discretion) with R.C.M. 306(b) discussion (listing factors to be considered by commanders in making an initial disposition of offenses).
  2. How To Make the Charging Decision: A Method.
    1. Review all the evidence.
    2. Develop a theory of the case.
    3. List possible charging options.
    4. Conduct elements/proof analysis of each charge.
    5. Consider ethical and legal limitations.
    6. Consider prudential/tactical factors.
      1. Theory of the case.
      2. Nature and degree of harm.
      3. Panel’s perception and sense of fairness.
      4. Exigencies of proof and intentional multiplicity.
      5. Use of “mega-specs”.
      6. Preservation of LIOs.
      7. Maximum punishments.
      8. Uncharged misconduct / MRE 404(b) issues.
      9. Cooperation of accused. (10) Improper motives of witnesses or victims. (11) Reluctance of victim to testify.
    7. Draft the Charges. Consider these basic principles:
      1. Charge the most serious offense consistent with the evidence. See United States v. Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994) (“[T]here is prosecutorial discretion to charge the accused for the offense(s) which most accurately describe the misconduct and most appropriately punish the transgression(s).”).
      2. Err on the side of liberal charging and be prepared to withdraw as the case develops. See R.C.M. 401(c) and R.C.M. 604 concerning withdrawal of charges and specifications.
      3. If charging conspiracy, ensure that it is important/necessary for your theory of the case.