Prosecutorial Discretion and the Burden of Proof in Criminal Cases By Anthony J. Fejfar, J.D., Esq.

, Coif © Copyright 2007 by Anthony J. Fejfar

In criminal cases the burden of proof is on the state to prove the defendant guilty “beyond a reasonable doubt.” Additionally, the Model Rules of Professional Conduct, under Rule 3.8, specifically states that a prosecutor cannot bring a criminal charge unless the charge is supported by probable cause. Ethics expert Monroe Freedman has argued that a higher standard is de facto required before a prosecutor can bring a charge. Freedman argues

that the prejudice and humiliation which a innocent criminal defendant must endure requires a higher standard than probable cause for bringing a criminal charge in the first place. Freedman argues that the standard for bringing a charge in the first place would be higher, except that the rule was enacted so a to protect prosecutors from claims of incompetence or misconduct, should a case be lost at trial. For example, let us assume that the charging standard was


“proof beyond a reasonable doubt,” which some have argued for. The result, in such a case, according to Freedman, would be that if a criminal defendant were acquitted and found innocent at trial, then the prosecutor could be charged with misconduct for bringing a case not supported by the “beyond a reasonable doubt” standard. I argue that a different approach should be taken to the problem. Given Freedman’s argument that the conviction standard and the charging standard cannot be the same, I argue that a different burden of proof should be used at each stage of the criminal proceeding. I argue that for a prosecutor to bring a charge in the first place, and for the case to survive the initial bail hearing, the prosecutor must prove his case by a preponderance of the evidence, that is by a probability of no less than 55%, based on the law and the facts. At the arraignment, the standard is raised to proof by clear and convincing evidence, that is proof by a probability of no less than 85%, based on the law and the facts. Finally, at trial the burden of proof is on the prosecutor to prove the case beyond a reasonable doubt, which I argue is proof by 95% probability, of both the law and the facts. The foregoing standard protects innocent criminal defendants from being harassed by a prosecutor but at the same time protects the prosecutor from charges of misconduct when there is an aquittal.