Presentation on

POLICE-PROSECUTOR RELATIONS

LECTURE BY JERRY M. BLAIR

STATE ATTORNEY

THIRD JUDICIAL CIRCUIT (Retired) LIVE OAK, FLORIDA

* The contribution to this material by James J. Gregart, retired Prosecuting Attorney of Kalamazoo, Michigan is gratefully acknowledged

DISCUSSION NOTES AND DETAILED OUTLINE

This outline and lecture will examine the interlocking roles and responsibilities of the prosecutor and police, the establishment of policies and management practices which aid the prosecutor's office in coordination of investigations, training, providing legal advice, and investigating and prosecuting police misconduct. It also includes a discussion of the impact on the traditional relationship between the prosecutor and police as it relates to emerging issues of immunity and ethics.

OUTLINE OF PRESENTATION:

1. Introduction:

"Prosecuting attorneys play two extremely important social roles. On one hand, they are law enforcement officers, working closely with the police in the investigation, apprehension, and interrogation of criminals. On the other hand, they are legal professionals, working in a system dependent upon due process and fair procedures.

There is usually no dissonance between the two sets of expectations, but sometimes the conflict becomes acute. Public safety requires law enforcement to be relentless and resourceful in pursuit of criminals, but liberty and democracy require that the criminal courts operate fairly and honestly. Prosecutors have to function at the intersection of the two systems, striving to put felons in jail while protecting their rights. It isn't always easy. "

Professor Steven Lubert

National Law Journal, June 20, 2001

II Elements of the PolicelProsecutor Relationship: The daily interactions and overall relationship between a prosecutor and local police is a complicated phenomena comprised of elements both within and beyond the control of the prosecutor. Across America, the relationships vary from the extremes of an "incestuous collegiality" to one of "angry

adversity." The relationship is shaped by differing views of the respective roles of police and prosecutors:

A. State Law: Some states have laws giving concurrent investigative jurisdiction to both the police and the prosecutor. Sometimes these statutory provisions are ambiguous, complicating the relationship between the prosecutor and police. Not all prosecutors have investigators assigned to them. Many prosecutors, in the absence of specific statutory authority, conduct only follow-up investigations on initial police investigations, or confine their investigations to specific matters that the police are unwilling or unable to investigate.

A. Local History and Custom: Local customs and historical precedent often complicate the task of the prosecutor who seeks to change the relationship between prosecutors and police. Incursion into traditional police "turf"can meet with stiff resistance and impact a prosecutor's daily and long-term relationship with local police. Likewise, when fiscal considerations dictate a scaling back of investigative activities by a prosecutor, this can be welcomed by some police agencies and greeted with concern by others.

A history of acrimony between the prosecutor and police is a challenge for the newly elected prosecutor. Often the historical reasons for the conflict have been lost to current memory, yet the conflict continues. A newly elected or appointed prosecutor is in a better position to reach out and mend fences than the prosecutor who has been a part of that history of acrimony.

C. Attitude and Tenure of the Prosecutor: The relationship with police is impacted by the attitude of the prosecutor, and how the prosecutor perceives his or her role in the criminal justice system. If the prosecutor's perception is consistent with state law and positive past local practice, then cooperative interactions with the police are enhanced. There are times when the chief prosecutor's personal philosophy and perceptions of the office can create tension with the police community. Some of these tension creating personal philosophies include:

1. "Stairway-to-the-Stars" Prosecutors: The reality is that some chief prosecutors enter into their duties with the idea that the office they hold is a stepping stone to bigger and better things. Accordingly, this small percentage of prosecutors view their job as either a showcase for others to view and appreciate their talents, or as a stepping stone to other political office. Not surprisingly, these prosecutors' efforts are directed more at looking good rather than at doing good. A tendency on the part of those prosecutors who view their jobs in this fashion is to shift the blame when things do not go well on high profile cases. Often, the blame is shifted to police, creating additional problems with prosecutor-police relations.

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2. "I am the Boss!" Prosecutors: Some chief prosecutors view themselves as the chief law enforcement officer in their jurisdiction and as such, the law enforcement community is subservient to them. In virtually all jurisdictions, local police agencies do not work for the prosecutor, and a "master/servant" attitude negatively impacts a collegial working relationship.

3. "Closet Cop" Prosecutors: While few children aspire to be prosecutors, many young people do aspire to be police officers. Many of those who aspire to be police officers eventually become lawyers and ultimately, prosecutors. The allure of being a police officer still exists, and some prosecutors become "closet cops." This fantasy is facilitated by the interaction with police officers and crime scenes that many prosecutors officers encourage.

Most law enforcement officers resent the more overt activities ofthese police "wannabes". Other law enforcement officers are likely to take advantage of the phenomena by "prosecutor shopping" in hopes that the "closet cop" prosecutors will rubber stamp their actions.

Prosecutor involvement in specialized enforcement programs, projects, units, task forces, and organizations serves a valid criminal justice purpose, and should be encouraged, with the understanding that the changing landscape with respect to prosecutorial immunity can make such participation problematic.

D. Attitude of the Police: Just as the attitude of the prosecutor impacts prosecutorpolice relations, so does the attitude of the police toward prosecutors. That attitude varies widely from jurisdiction to jurisdiction and from officer to officer, and can range from the perception that prosecutors are "in my hip pocket" to prosecutors are the "enemy". The attitude of police officers will vary widely dependent upon their interaction with the chief prosecutor, the staff, a specific case, media reports, locker room gossip, biases, education, years of experience, and accurate knowledge. Within police agencies, the attitudes of individual officers will differ. The chief prosecutor and the chief of police may get along well, but individual officers might dislike individual prosecutors for case-specific reasons. In other instances, prosecutors and police at the operational level may work together well while the elected Sheriff and the elected prosecutor may be at odds, often for no reason other than they are members of different political parties.

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E. Differing Perceptions:

"The main complaint police have about prosecutors is that they dispose of too many cases by rejection, dismissal and plea negotiations. The main complaint prosecutors have about the police is that they do not provide prosecutors with the amount and kind of information prosecutors need. "

Police-Prosecutor Relations in the United States National Institute of Justice, July 1982

1. Police vs. Prosecutor Goals: According to the American Bar Association's Prosecution Function Standard 3-1.2( c), "The duty of the prosecutor is to seek justice, not merely to convict." This unique duty is more fully expressed by Supreme Court Justice Southerland:

"(The Prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, there/ore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-s-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. "

Berger v. United States, 295 U. S. 78 (1935)

Police officers are not fully aware of this prosecution duty. Many police officers have a more limited goal of merely getting a suspect charged with a crime by the prosecutor. The goal is to have their case "cleared by arrest." There is no extra credit for obtaining a conviction, and most police agencies measure their performance based solely on clearance rate, not convictions.

In addition, police officers are trained (and perhaps genetically predisposed) to focus on finding inculpatory evidence of guilt They are not conditioned to seek possible exculpatory evidence that would weaken their case. Sometimes this causes them to overlook facts and evidence that might later be used to establish reasonable doubt before a jury.

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Obviously, our system of justice works best if both the police and the prosecutor share the same end goals. Stamping a case "cleared by arrest" when a guilty defendant is later acquitted might good numbers, but it also makes bad justice. To attainjustice, both professions must understand the traditional goals of the other, and look beyond the traditional initial interaction between police and prosecutor, i. e., charging a suspect with a crime.

2. Police vs. Prosecutor Expectations: Many times, conflicts between police/prosecutor are occasioned by an unspoken difference in professional expectations. These differing expectations often revolve around the prosecutor's charging/screening function and discretion to resolve cases by means other than trial, such as pre-trial intervention programs, drug courts, and plea bargaining. The establishment of consistent standards that are know to the police and the adherence to those standards by the prosecutor can reduce this area of conflict and result in more harmonious relations.

III. The Impact of the Various Roles of the Prosecutor on Police/Prosecutor Relations:

"Prosecutorial professionalism and police professionalism are shared imperatives. A close and productive relationship between the prosecutor and police is beneficial to both and to society, as it promotes harmony and the effective administration of justice. "

The Prosecutor's Deskbook, 3rd Ed., APR!, 2001

A. Prosecutor as "Gatekeeper" of the Criminal Justice System:

1. Traditional role of the prosecutor

2. Point of contact

3. Reactive vs. proactive

B. Prosecutor as Chief Law Enforcement Officer/Criminal Justice System Leader:

t~s chief law enforcement officer, the prosecutor has the ultimate responsibility for the integrity of the criminal justice system. Maintaining public trust and confidence is, in large part, the prosecutor's primary duty."

The Prosecutor's Deskbook, 3rd Ed., APR!, 2001

C. Prosecutor as Liaison with Police:

"Prosecution should provide liaison and actively seek to improve

communication with law enforcement agencies. The prosecutor should prepare and encourage the use of standard reporting forms by all law enforcement agencies within the jurisdiction. When it is possible to do so, the prosecutor should keep local

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police agencies informed of cases in which they were involved and provide communication on those cases in order to aid the police in the performance of their duties. "

National Prosecution Standards, 2nd Ed., NDAA, 1991, Standardsl9.1 and 19.2

1. Liaison Assignments

2. Task Forces

a) Particular crimes

b) Particular problem areas or neighborhoods

c) Particular targets

d) Advantages of prosecutor involved investigations:

1) Better investigations

2) Avoidance of police misconduct

3) Compliance with constitutional and legislative mandates and rules of court

3. Regular Meeting with Police:

a) Attend police shift briefings

b) Join police and benevolent or fraternal organizations

c) Invite police to help train prosecutor staff

d) Participate in police sports leagues, e. g. golf, softball, basketball, etc.

e) Attend police promotion ceremonies and retirement functions

4. Notice of court proceedings and disposition of cases

D. Prosecutor as Legal Advisor to Police:

"Prosecution should provide legal advice to the local law enforcement agencies concerning SUfficiency of evidence, warrants, and similar matters relating to investigation of criminal cases. The prosecution should serve in an advisory capacity to insure the legality of documents and procedures in pursuing criminal cases. The prosecutor should encourage the police to seek this advise as early as possible in the investigation of a case. "

National Prosecution Standards, 2nd Ed, NDAA, 1991, Standard 22.1

1. On call Attorneys

2. Advice on Sufficiency of Evidence

3. Assistance with Arrest Warrants and Search Warrants

E. Prosecutor as Trainer of Police:

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"The prosecutor should encourage, cooperate with, and where possible, assist in law enforcement training. The prosecutor should urge local law enforcement officers to participate in national, state, and regional training courses ... The prosecutor's office should develop a system,formal or informal, of assisting in the on-going training of officers by conducting periodic classes, discussions, or seminars, to acquaint law enforcement officers with recent court decisions and procedural changes in the law. "

National Prosecution Standards, 2nd Ed., NDAA, 1991, Standards 20.1 and 20.2

1. Publications:

a) 11emoranda

b) Training Bulletins

c) Newsletters

2. Seminars and Conferences:

3. Videos, DVD's, and Distance Learning:

F. Prosecutor as Investigator and Prosecutor of Police:

1. Police Shootings:

"Rarely is a situation more distressing to the community than one in which a protector-in this case, the police officer on duty-uses deadly force against a member of the community. Society looks to the prosecutor for reassurance that law enforcement's actions were legal and appropriate, and therefore, the prosecutor is obliged to determine the truth and dispense justice under the glare of their intense scrutiny."

The Prosecutor's Deskbook, 3rd Ed., APRl, 2001

a) Call-out teams

b) Special Prosecutors

c) Grand Juries and Inquests

d) Citizens' Review Boards

e) Federal Involvement

IV Special Problem Areas in Police-Prosecutor Relations:

A. High Profile Cases:

B. Police 11isconduct:

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" ••• the prosecutor may need to conduct investigations that the police are unable or unwilling to undertake, such as investigations of public officials, including the police themselves. "

ABA Standards for Criminal Justice, Standard 3-2.4 Commentary, p. 29

C. Use of Prosecutor's Investigators:

V. Emerging Issues Impacting Traditional Police-Prosecutor Relations:

A. Community Oriented Policing (COPS) and other Initiatives:

B. Evolving Issues on Immunity and Ethics:

" .•• the prosecuting attorney may be restrictedfrom any active participation in the policefunction by the threatened loss of immunity to civil damages in instances where participation is beyond the scope of advisor and therefore, not an integral part of the judicial process. The prosecutor must always be cognizant that his quasijudicial immunity afforded by the courts in civil liability suits is limited to actions taken in advancement of the traditional prosecution function. "

National Prosecution Standards, 2nd Ed., NDAA, 1991, Standards 19.1-22.1; Commentary, p. 80

1. Imbler v. Pachtman, 424 U. S. 418 (1976)

2. Bums v. Reed, 500 U. S. 478 (1991)

3. Buckley v. Fitzsimmons, 509 U. S. 259 (1993)

4. Kalina v. Fletcher, 522 U.S. 118 (1997)

5. In re Gatti, 330 Or. 517, 8 P.3rd 966 (Or. 2000)

6. Colorado Bar v. Paulter

II Conclusion:

"When the prosecutor enjoys a healthy relationship with the law enforcement community and accepts the role of legal advisor and educator, the community reaps the benefits and justice is enhanced. However, the prosecutor must always be prepared to render independent judgments when needed to promote the ends of justice. "

The Prosecutor's Deskbook, 3rd Ed., APRI, 2001

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