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

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“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.