The prosecutor as investigator.

• Author: Lewis, Mark F.

"In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys who prosecute the offenders."

Law and Order, NBC-TV

As is often the case when comparing fact with fiction, the dichotomy suggested by this quote is not entirely accurate, at least as it concerns prosecutors in the Florida state criminal justice system. Although these functions are ideally, and for the most part actually, separated, the state prosecutor is often called upon to conduct or assist in investigations leading to the possible filing of criminal charges. This article will explore the nature and extent of this power, as well as some of the limitations upon it.

The statutory basis for the prosecutor's investigative functions lies in F.S. [section] 27.04 (2002) which states, in pertinent part, that the state attorney has the right to summons witnesses "to testify before him or her as to any violation of the criminal law upon which they may be interrogated." The leading case that confirmed this power is Imparato v. Spicola, 238 So. 2d 503 (Fla. 2d DCA 1970), in which an attempt was made to quash subpoenas that the state attorney had issued for various corporate records. While limiting their scope, the Second District Court of Appeal agreed with the trial court that the subpoenas were part of a presumably lawful investigation. In reaching this conclusion, the court stated the following oft-quoted remark:

[The State Attorney] has been loosely referred to many times as a "one-man grand jury." And he is truly that. He is the investigatory and accusatory arm of our judicial system of government, subject only to the limitations imposed by the Constitution, the common law, and the statutes, for the protection of individual rights and to safeguard against possible abuses of the far-reaching powers so confided.

Id. at 506.

In Doe v. State, 634 So. 2d 613, 615 (Fla. 1994), the Florida Supreme Court espoused a similar theme, upholding a state attorney's right to compel the production of fingerprints and handwriting exemplars. In a statement that could be characterized as "parading the horribles," the court declared that without such power "criminal activity could be hidden behind a 'wall of silence' that finds no justification in legal privilege, but is based simply on an individual's desire not to get 'involved,' fear of retaliation, dislike for the substantive law, or private code against 'snitching."' (Quoting 1 LaFave & Israel, Criminal Procedure [section] 8.6 (1984)).

A few cases have addressed the question of the manner in which the prosecutor can employ investigative functions. While the Spicola, decision likened the state attorney to the grand jury, Ira Re Getty, 427 So. 2d 380 (Fla. 4th DCA 1983), makes a clear distinction between the two on one key factor. A witness in this case challenged being questioned by a prosecutor while the investigating law enforcement officer was also present. An analogy to the secrecy of the grand jury (1) did not succeed. In fact, the court seemed to encourage this procedure, noting that the presence of the officer would be helpful to ensuring the thoroughness of the prosecutor's investigation.

However, while law enforcement officers may be present during such investigations, they cannot be the only people conducting the questioning. A situation may arise where a police officer has been stymied by uncooperative witnesses, and seeks the state attorney's subpoena power as a way oo compelling cooperation. In this case, the prosecutor must do more than merely issue the subpoena and administer the oath. He cannot then direct the witness to answer questions posed by the officers outside his presence. McCoy v. State, 338 So. 2d 52 (Fla. 4th DCA 1976).

As the Spicola decision suggests, there are certain limitations to the state attorney's investigative functions. This power is restricted to gathering information that may lead to the instituting of criminal proceedings. In Morgan v. State, 309 So. 2d 552 (Fla. 2d DCA 1975), the court reversed an order of contempt that had been issued to a newspaper reporter. She had refused to answer questions posed by a prosecutor who was trying to determine how she had obtained information regarding a grand jury proceeding. In reversing the contempt citation, the court noted that the statute in question, F.S. [section] 905.24 (1973), prohibiting a grand juror from disclosing the nature or substance of deliberations, did not provide a criminal penalty. (2) Since the subject matter of the interrogation was not directed at a violation of criminal law, the reporter was not obligated to answer the questions.

Sometimes it is difficult, even for the prosecutor, to state with particularity the specific offenses that may be charged if the appropriate evidence is found. As a general rule, courts have given the prosecutors great leeway. For example, in Check 'N Go v. State, 790 So. 2d 454, 457 (Fla. 5th DCA 2001), the plaintiff challenged an investigative subpoena issued by the attorney general's office. In affirming the legitimacy of the agency's actions, the court observed that latitude is afforded in these situations, and that "the level of proof required of the investigative agency must suggest something more than a fishing expedition, and something less than probable cause."

While a...