Charging on the margin.
Author | Crane, Paul T. |
Position | II. Strategic Undercharging: Why Less Is Sometimes More B. Efficiency Gains 2. Felony Discovery Costs through Conclusion, with footnotes, p. 805-839 |
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Felony Discovery Costs
Defendants charged with felonies typically receive more ample discovery than defendants charged with misdemeanors. (135) This usually occurs because of the additional mandatory discovery requirements that the government is typically subject to in felony cases and the increased mechanisms that defendants have for developing discovery in felony cases. (136) As a result, felony prosecutors are often forced to endure the additional costs of heightened discovery obligations--costs which add up quickly for prosecutors managing swollen caseloads. Additional discovery requirements can also reduce some of the government's bargaining power during plea negotiations, especially if the additional disclosures would force the prosecutor to lay bare evidentiary weak spots--yet another reason why borderline cases with evidentiary concerns might get routed to the misdemeanor track.
The degree to which jurisdictions afford felony defendants more discovery varies. For example, in the federal system most (though not all) discovery rules apply equally to defendants facing misdemeanor charges as those facing felony charges. (137) Many state jurisdictions, however, create significant disparities in how discovery is handled in felony and misdemeanor cases.
For example, several states that require "open file" discovery do so only in cases involving felony offenses. In Arizona, for instance, only felony defendants are entitled to receive "[a]ll then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged" (138) at the outset of the prosecution. Similarly, in North Carolina, a pioneering state for open file discovery, only felony defendants are entitled to the wealth of materials made available by such disclosure requirements. (139)
Some jurisdictions that do not require open file discovery also make significant distinctions between felony and misdemeanor offenses. In Georgia, for example, state law provides more expansive discovery regarding statements made by the defendant to members of law enforcement in felony prosecutions than in misdemeanor prosecutions. (140) Moreover, Georgia prosecutors in felony cases must disclose to the defendant more information regarding potential witnesses and witness statements than is required in misdemeanor cases. (141)
Although many jurisdictions create differing discovery obligations for felony and misdemeanor prosecutions, I am not aware of any jurisdiction where the discovery rules are altered based on an offense's potential collateral consequences.
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Potential Future Costs: Right to a Jury Trial
A final set of procedural guarantees that varies across offense types is a defendant's right to demand a jury trial. According to the Supreme Court, the right to a jury trial provides the defendant "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." (142) From the perspective of the prosecutor, however, a jury trial is often unwelcome.
As an initial matter, jury trials take longer to complete than bench trials. Jury trials require additional time for jury selection, jury instructions, and lengthier opening and closing statements. According to one analysis of federal prosecutions, jury trials on average took four times longer to complete than bench trials. (143) As one former prosecutor I interviewed pithily put it: "[A] two-hour bench trial becomes a three-day event with a jury." (144)
But the costs associated with the trial itself are only part of the equation. Compared to bench trials, jury trials often require prosecutors to engage in more intensive preparation and frequently entail more pretrial litigation over procedural and evidentiary issues. (145) For these reasons, offenses that result in a jury trial are substantially more costly to prosecute than those that end with a bench trial. (146)
It is no surprise, therefore, that several studies have documented prosecutors' preference for bench trials instead of jury trials. For example, Issa Kohler-Hausmann observed that the "standard practice" for misdemeanor prosecutors in New York City was, on the eve of trial, to reduce any Class A misdemeanor charges (which trigger the right to a jury trial in New York City) to Class B misdemeanor charges (which do not) in order "to ensure a bench trial. Put simply, "by withholding the jury trial right governments gain a major strategic advantage, depriving defendants of the option to threaten exercise of the right, with its associated adverse impact on dockets and justice system resources." (148)
Given prosecutors' preference to avoid jury trials--and the threat of jury trials when feasible, it is important to understand when a defendant has a right to a jury trial. Under the Sixth Amendment, all felony defendants, but only some misdemeanor defendants, have a federal constitutional right to demand a jury trial. A misdemeanor defendant charged only with "petty" offenses has no federal constitutional right to a jury trial. (149) The current lodestar for determining whether an offense is petty is the potential term of imprisonment it authorizes. (150) An offense that threatens more than six months imprisonment is always considered serious and automatically triggers a defendant's right to trial by jury. (151) Conversely, an offense that carries a maximum term of imprisonment of six months or less is presumed to be petty. (152) The presumption is rebutted and the defendant has a right to a jury trial "if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." (153) Notably, the Supreme Court has thus far limited its "legislative determination" inquiry to the legislature that enacted the offense. (154) This is significant because other sovereigns--such as the federal government--may impose "additional statutory penalties" upon conviction. (155)
Whereas a number of states follow the federal constitutional baseline when determining the scope of a defendant's right to a jury trial, many others exceed the constitutional floor and provide more expansive jury trial rights. (156) For example, several states require a trial by jury for all offenses that authorize any amount of potential imprisonment. (157) And some jurisdictions provide all criminal defendants a right to a jury trial. (158)
As for the relevance of an offense's collateral consequences, the Supreme Court's reference to "additional statutory penalties" in Blanton u. City of North Las Vegas appears to suggest that at least some collateral consequences may be pertinent when determining whether a defendant has a federal constitutional right to a jury trial. (159) However, since Blanton, several significant collateral consequences have been deemed irrelevant by courts when deciding whether a presumptively petty offense is, in fact, serious for Sixth Amendment purposes. Federal and state courts have repeatedly concluded that a requirement to register as a sex offender is im- material to the calculus. (160) This conclusion has primarily rested on the assertion that sex offender registration is not formally a criminal punishment but rather a "remedial, collateral consequence of the conviction. (161) Similarly, state courts have consistently ignored the deportation consequences of a conviction when deciding whether an offense is petty or serious. (162) And state courts have also held that a federal firearm ban--such as the one for persons convicted of a misdemeanor domestic violence offense--is irrelevant because it was Congress that enacted the firearm prohibition, not the applicable state legislature. (163)
In sum, as is the case with grand juries, preliminary hearings, and enhanced discovery obligations, prosecutors can often avoid triggering a defendant's right to a jury trial by filing a misdemeanor charge instead of a felony one.
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Increasing (or at Least Not Decreasing) the Likelihood of Conviction
According to many scholars, prosecutors function as conviction maximizers. (164) Regardless of whether prosecutors are in fact maximizing convictions or something else, (165) there is little doubt that concerns about likelihood of conviction are often at the forefront of a prosecutor's mind when deciding what charges to pursue in a given case. (166) In a field where objective metrics for job success are thin, a prosecutor's "conviction rate" is often used as "the principal measure of prosecutorial job performance." (167) Thus, prosecutors concerned with career advancement (or even just career stability) are likely to place a premium on their win-loss statistics. (168) And for offices where the chief prosecutor is elected, "the need to maximize convictions will be an inescapable environmental constraint." (169) As Daniel Richman has explained, "[t]hose elections that are contested are often fought on an incumbent's win-loss record, and an incumbent's concerns in this regard will be felt by his subordinates." (170) For these reasons, prosecutorial office culture is often described as one dominated by the mantra of "nondefeat." (171)
In its purest form, concerns about likelihood of conviction are trained on the strength of the evidence and whether the prosecutor thinks the ultimate adjudicator--a judge or jury--is likely to enter a judgment of conviction. (172) But concerns about likelihood of conviction can also encompass other considerations, such as the likelihood that a particular set of charges will induce a defendant to plead guilty. The strength of the evidence (and how that evidence will be received by the ultimate adjudicator) still plays a leading role in that assessment, but other factors may also be relevant. (173)
In some ways, the strength of the...
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