Probable cause revisited.

• Author: Ortman, William
• Position: Introduction through II. A History of Charging Standards A. The Founders' Charging Standards 3. The Founding: Outliers, p. 511-538

Table of Contents Introduction I. A Framework for Understanding Criminal Charging Standards II. A History of Charging Standards A. The Founders' Charging Standard 1. The English debate and its transmission 2. The Founding: general view 3. The Founding: outliers a. South Carolina b. Pennsylvania 4. Understanding the Founders B. Probable Cause Triumphant: The Nineteenth and Twentieth Centuries III. Probable Cause and Plea Bargaining A. The Virtues and Vices of Plea Bargaining B. The Interaction of Probable Cause and Plea Bargaining 1. "Zero opinion" mechanism 2. Prosecutorial incentives C. Understanding Probable Cause's Survival 1. Demand 2. Supply 3. Path dependence Conclusion Introduction

Most judges, lawyers, and scholars accept uncritically that to charge a criminal defendant, the government must present probable cause of his guilt to a grand jury or magistrate. The Supreme Court, for instance, treats the probable cause standard for federal criminal charges, like the reasonable doubt standard for convictions, as ancient and inevitable. (1) It is not. In reality, probable cause is just one of many criminal charging standards known in theory and history.

Charging standards are essential elements of criminal justice systems, yet the criminal procedure literature has paid surprisingly little attention to them. (2) By contrast, civil procedure scholarship focuses extensively on the analogous feature of civil litigation: pleading standards. Since the Supreme Court revised the civil pleading requirements in Bell Atlantic Corp. v. Twombly, (3) scholars have carefully examined the relationship between pleading regimes and other aspects of civil litigation, especially discovery and settlement. (4) Civil pleading rules and criminal charging standards serve a similar function--they determine which cases will be allowed into court. No less than their civil procedure colleagues, criminal procedure scholars should be attentive to the "fit" between a charging standard and the broader adjudicative system to which it belongs.

Part I of this Article begins that effort by offering a simple framework for understanding the relationship between criminal charging standards and adjudicative systems. I argue that charging standards have two primary effects on criminal justice systems: they inhibit erroneous convictions and they constrain the delegation of prosecutorial authority. Strict charging standards are attractive to criminal justice policymakers for whom certainty of guilt and prosecutorial constraint are important. And they are especially appealing when certainty and constraint are not otherwise provided for in the adjudicative system.

Part II uses this framework to explore the history of charging standards in the United States from the Founding to the twentieth century, when "probable cause" came to dominate in the federal courts and the majority of the states. Important parts of this history have not before been told. The history demonstrates that, contrary to commonly held intuitions, probable cause is neither inevitable nor ancient, but instead contingent and of fairly recent vintage.

Part II.A presents novel evidence that many judges of the Founding era rejected the idea, urged by a group of English lawyers and judges a century earlier, that criminal charges require only a "probable Ground for an Accusation." (5) Several Founding-era judges told grand juries that they could indict only if they were certain of a suspect's guilt. Part II.A draws on--but complicates--the leading historical study of criminal charging standards, which found that there was no commonly accepted approach during the Founding era. (6) The recent publication of every surviving grand jury charge from colonial, state, and lower federal courts prior to 1801 makes it possible to revisit that conclusion. (7) From a careful review of the surviving charges, I have identified the positions of twenty-eight Founding-era judges, the vast majority of whom instructed grand juries to use evidentiary standards more demanding than probable cause. (8) Their insistence on a strict charging standard fit the criminal justice system of their day well. Trials during the Founding era were summary affairs, (9) making an additional check against erroneous conviction useful. Likewise, the constraint that a strict charging standard imposes on prosecutors aligns with the Founding generation's anxiety about concentrations of power.

Part II.B then examines the slow but steady adoption of the probable cause standard during the late nineteenth and twentieth centuries. Previous scholarship has characterized the emergence of probable cause during this period as mysterious. (10) argue that probable cause's rise can be understood as a corollary of the formalization of criminal procedure, particularly the criminal trial, during the same time period. Procedural devices like extensive voir dire and error preservation emerged during the same period that probable cause became the dominant charging standard. (11) By the late nineteenth and twentieth centuries, criminal procedure carried the appearance of reliability. Because the criminal justice system had found a different way to accurately judge guilt, it no longer needed a strict charging standard to satisfy its demand for certainty--or so it must have seemed to decisionmakers.

Part III applies the framework developed in Parts I and II to the contemporary use of the probable cause standard. By the second half of the twentieth century, it had become clear to all that plea bargains, not trials, had become the primary mechanism of criminal adjudication. (12) The rise of plea bargaining undercut the probable cause standard's basic logic: that grand juries and magistrates need not be certain of a suspect's guilt because trial juries will be. As Part III.A explains, a substantial body of literature identifies consequences of the criminal justice system's pivot to plea bargaining. According to many commentators, plea bargaining spawned (i) strong prosecutorial control over criminal justice, (13) and (ii) chronic uncertainty about the factual and/or legal guilt of the individuals punished. (14) To the extent these critiques are right, plea bargaining diminishes both of the criminal justice values that strict charging standards offer. The probable cause standard, moreover, exacerbates these consequences of plea bargaining in important ways not fully explored in the literature, as Part III.B describes.

Once plea bargaining's domination of the criminal justice system had become apparent, one might have expected to see a reversion to a stricter charging standard. That is not, of course, what happened. Part III.C identifies three ways to understand probable cause's survival in the age of plea bargaining. First, it may be that policymakers no longer valued certainty of guilt or constraints on prosecutors as much as they once did. Second, "voluntary" guilty pleas may have provided, or appeared to provide, an adequate amount of social certainty of guilt. Third, perhaps policymakers never reexamined the fit between charging standards and the plea bargaining regime. This too is plausible. American criminal justice backed into plea bargaining, and formal law has long been ambivalent about it. (15) It is altogether possible that probable cause's survival is nothing more (or less) than path dependency.

A brief Conclusion considers normative implications of the analysis. The crucial implication is that probable cause is a choice, not a fixed element of our legal tradition. While the explanations for probable cause's survival in Part III are descriptively plausible, they are normatively troubling. Charging standards should fit the criminal justice systems of their day, and ours does not. The time has come to recalibrate the charging standard to fit the criminal justice system as it exists now. (16)

1. A Framework for Understanding Criminal Charging Standards

   Imagine a criminal justice system with no criminal charging standard whatsoever. (17) Prosecutors can file formal criminal charges at will, with or without evidence or suspicion. Cases then proceed to disposition by plea or trial.

   Such a system would differ from one with a charging standard in two significant ways. First, it would likely have more false positives. That is, it would probably convict more innocent defendants. (18) Under realistic assumptions, charging standards prevent some number of innocent defendants from being charged. (19) Sometimes this is because a magistrate or grand jury, applying the charging standard, rejects a case. (20) More generally, because prosecutors make charging decisions in the shadow of the charging standard, they sometimes decline to file cases where the evidence falls short. A system without a charging standard lets more innocents proceed to final disposition. Because all adjudicative systems make mistakes, some innocents will inevitably be erroneously convicted. (21) In more formal terms, the combination of a charging standard with a separate merits adjudication is a "second-opinion" mechanism. (22) When both opinions signal that the defendant is guilty, there is more reason to be confident that he is. (23)

   Second, prosecutors in a world without charging standards would possess an unchecked power to subject people to the rigors and risks of the criminal process. A standard imposes a constraint. The constraint may be internal--if the prosecutor feels bound to abide by it. (24) It may be external--if it is enforced by a magistrate, grand jury, or some other independent body. Or it may be both.

   Criminal...