54 RI Bar J., No. 6. Pg. 5 (May/June 2006). Police Prosecution In Rhode Island: The Unauthorized Practice Of Law.

AuthorAndrew Horwitz, Esq. And John R. Grasso

Rhode Island Bar Journal

Volume 54.

54 RI Bar J., No. 6. Pg. 5 (May/June 2006).

Police Prosecution In Rhode Island: The Unauthorized Practice Of Law

Rhode Island Bar JournalVolume 52, No. 6, Pg. 5 May/June 2006Police Prosecution In Rhode Island: The Unauthorized Practice Of LawAndrew Horwitz, Esq. And John R. GrassoAndrew Horwitz is a Professor of Law and the Director of Clinical Programs at Roger Williams University School of Law. John R. Grasso is a former police officer with the Cranston Police Department and a third year law student at Roger Williams University School of Law.

Every day in Rhode Island, police officers are practicing law without a license in both the District Court and the Traffic Tribunal. They do so with the full stamp of approval of the judges before whom they appear, despite the fact that the unauthorized practice of law is a crime in Rhode Island, as it is in every other state in the country. While one can certainly speculate about reasons why this practice has developed, there is nothing in any published decision of the Supreme Court of Rhode Island or in any state statute that appears to permit or justify it. And, although the vast majority of police prosecutors in Rhode Island are dedicated and highly qualified public servants who do their jobs in good faith and to the best of their abilities, the fact remains that it is a highly problematic practice to allow police officers, who are not licensed attorneys, to prosecute criminal and traffic cases. After first explaining the various ways in which police officers routinely engage in the unauthorized practice of law in the District Court and the Traffic Tribunal, the authors explore a few of the many reasons why this unlawful practice is simply bad public policy.

At the outset, it is important to recognize the vital role a public prosecutor plays in protecting the public, the defendant, and the criminal justice system as a whole. While it may seem superficially harmless to entrust a misdemeanor or traffic prosecution to a police officer, that delegation of responsibility completely ignores the prosecutor's vital role. A prosecutor exercises enormous discretion - discretion that is essentially unreviewed and unreviewable - in handling criminal or traffic cases. The proper exercise of that discretion is dependent upon a number of factors, not the least of which include legal training and ethical obligations. Indeed, the criminal justice system functions almost entirely on a presumption that the extraordinary power of the government, as wielded through a prosecutor, is being applied fairly and justly. This presumption is founded on the fact that the prosecutor is an attorney who, having been licensed to practice law in the jurisdiction, is fully trained in the law and bound by the code of legal ethics governing attorney conduct. The licensing process also assures a prosecuting attorney has passed a screening with respect to honor and integrity and that he or she has sworn obedience to a code of legal ethics. The fact that a prosecuting attorney is subject to the threat of professional discipline if he or she violates any of the relevant ethical obligations, provides further assurance that a prosecuting attorney will faithfully execute the duties of his or her office in a fair and just fashion. When the person who prosecutes a criminal or traffic case is not a licensed attorney, none of these protections or assurances is in place, and the legal presumption that prosecutorial discretion is being exercised fairly is entirely unfounded.

The following points detail some of the many reasons why, even if one were to assume that a prosecuting police officer were as legally competent as a prosecuting attorney and as obedient to all of a prosecuting attorney's ethical requirements, several troubling issues still remain. In Rhode Island, we elect an Attorney General to carry out the prosecutorial function for the State. As our duly elected public prosecutor, he or she is charged with the responsibility of prioritizing the use of prosecution resources and determining fairness on an individualized basis. Ultimately, he or she is answerable to the electorate. The public prosecutor's failure to perform these roles, either directly or through his or her staff, constitutes an entirely unjustified delegation to an individual police department that is not directly accountable in any fashion. Moreover, there are problems in terms of the appearance of justice in courts in which police officers serve as prosecutors. When a prosecuting attorney fails to appear to prosecute a criminal case, the message conveyed is the case is not of any particular importance - certainly not the message our criminal justice system ought to be conveying. By failing to distinguish between the functions of the police department and the functions of a prosecutor's office, the practice suggests the existence of an unsupervised police state. In addition, allowing a layperson to practice law, an act that is illegal in every state in the country, the practice condones illegality at the same time that it purports to be enforcing the law.

Daily Practice in the District Court and the Traffic Tribunal

On any given morning in the Rhode Island District Court, dozens and sometimes hundreds of criminal defendants are arraigned on criminal charges. In each of those cases, the defendant is arraigned on a criminal complaint that has been drafted by a police officer, not by a licensed attorney. (fn1) Prior to the arraignment, particularly in misdemeanor cases, there is typically some conversation or negotiation that takes place between the prosecuting police officer and the defendant's lawyer or, much more frequently, the unrepresented defendant. At the arraignment, the government is represented by a police officer, not a licensed attorney, and in the case of misdemeanor offenses, the case is frequently resolved with some sort of a plea. The Court will generally ask the police prosecutor for a sentencing recommendation or, if the case is not resolved, for a recommendation with respect to bail. Those recommendations are made without any input from a licensed attorney. If a misdemeanor case is not resolved, it is scheduled for a pre-trial conference date. On that date, depending upon the city or town prosecuting the case, it is quite likely that the government will once again be represented in the negotiation phase and before the Court by a police prosecutor who is not licensed to practice law. In some settings, that representation occurs under some form of supervision by a licensed attorney, but frequently that is not the case. In many cities and towns, a licensed attorney will review the case if, and only if, the case is scheduled for trial. Under current practice in District Court, police prosecutors who are not duly licensed to practice law are not permitted to represent the government at trial.

The situation is similar at the Rhode Island Traffic Tribunal, with the notable exception of what occurs at the trial stage. As in District Court, the case is initiated with a summons drafted by a police officer who is not licensed to practice law. The government is represented by a police officer at the arraignment stage, not only for purposes of appearing before the court, but also for purposes of negotiating dispositions with unrepresented defendants and with defense counsel.

If the case is passed for trial, with the exception of chemical test refusal cases, which are prosecuted at trial by the Department of the Attorney General, the government will be represented by the individual police officer who wrote the summons. That officer will generally be permitted not only to testify, but also to cross-examine defense witnesses, make arguments to the court, and make sentencing recommendations if a charge is sustained. If, as frequently occurs, the defendant is not represented by counsel, the trial proceeds and concludes without a licensed attorney ever having looked at the case.

What Constitutes the Unauthorized Practice of Law

As the Supreme Court of Rhode Island noted in 1935 "[that] the practice of law is a special field reserved to lawyers duly licensed by the...

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