Prosecutors Have Standards to Follow: the Federal Principles of Prosecution

Prosecutorial misconduct remains at epidemic proportions here in Texas as well as the rest of the United States.  We discuss the problem periodically because it’s a scary reality for criminal defense lawyers and their clients.

Prosecutors can abuse their power and do bad things.  It happens.  All too often.

For more on prosecutorial misconduct, check out our posts that include:

• Texas Prosecutor on Trial for Prosecutorial Misconduct
• Prosecutor Withholding Evidence from Defense in Federal Criminal Case
• Prosecutorial Misconduct: How Bad Is It? Dallas Chief Investigator Pleads Guilty to Taking Bribe
• Prosecutorial Misconduct in Texas: Right Now, it’s an Appellate Fight
• Prosecutorial Misconduct is a Big, Big Problem in Texas; Here Are Just a Few Examples

Prosecutor Have Established Guidelines and Standards of Conduct

However, what many may not realize is that prosecutors have a standard of conduct to reference as they do their job.  Of course, there are the ethical rules themselves.  But there’s also something in the federal system called the “Principles of Prosecution” contained in the U.S. Attorney General’s Manual.

It’s not substantive law.  You cannot file a claim if its provisions are violated.  However, it is something that is to be used by federal prosecutors in their roles as law enforcement officers of the federal government.

If some internal office policy doesn’t jive with the manual, the manual controls. It’s a big deal.

Let’s consider some of those principles today – what they are, and what they advise these government attorneys is the proper course in a criminal case where they are seeking to take away someone’s freedom, their property, and in some instances, their life.

In Title 9 of the Manual for the United States Office of the Attorney General, there are two “principles of prosecution,” one covering prosecution of individuals (9-27.000) and the other applying to prosecuting business organizations (9-28.000).  We’ll be looking at the prosecution of individual people today.

Prosecutorial Decisions Can Have Influential Impact on Society

In the preface (9-27.001), federal prosecutors are instructed that these Principles of Federal Prosecution (PFP) are there to “…promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the federal criminal laws.”

It recognizes that anytime a prosecutor decides to move forward with a case, that decision has “far-reaching implications” not only for the accused but for the effectiveness of law enforcement overall and justice itself.

Bad prosecutorial decisions can get people upset.  Lots of people.

Deciding Who Gets Prosecuted

One of the big decisions that any prosecutor must make is whether or not to prosecute the individual in the first place.  In PFP Section 9-27.220, the government’s lawyer gets some guidance on making this call.

It’s supposed to be based upon three factors.  Before going full steam ahead in prosecuting the accused:

• First, the prosecutor should have a personal belief that the individual has committed the crime.
• Second, there should be enough evidence in the case to form a reasonable belief that if the case moves forward, the prosecutor can get a conviction. (It’s gotta meet Rule 29(a) of the Federal Rules of Criminal Procedure.)
• Third, the lawyer needs to find a “substantial federal interest” that would be served by prosecuting this man or woman.

So, when should a prosecutor say nope to a case, and decide not to prosecute the individual?  Well, if they cannot meet these three factors, of course.  But also if in their judgment:

• The person is going to be prosecuted effectively in another jurisdiction (say, by the Dallas County District Attorney’s Office or the Tarrant County DA); or
• The federal prosecutor sees that there is another road to take that is “an adequate non-criminal alternative to prosecution.”

What Are These Non-Criminal Alternatives to Prosecution?

In PFP Section 9-27.250, these alternatives to a criminal trial are discussed.  Specifically, they are federal and state administrative remedies that are on the books which may apply to the circumstances of the case.  These remedies include sanctions that can be assessed against the man or woman who is facing federal charges.

They include things like Tax Court (civil tax proceedings); civil lawsuits based upon fraud; or litigation based upon violations of the securities laws or antitrust statutes seeking civil remedies.  They can also include disbarment actions against lawyers or licensing actions against doctors.  Pretrial diversion is included here, too.

If the federal prosecutor thinks that these civil actions or administrative sanctions are going to hold up and be imposed on the person, then maybe he or she will decline to go forward in the criminal case.

What Things Should the Prosecutor Never Consider In Deciding to Prosecute?

In PFP 9-27.260, guidance is given on what the government lawyer is NOT supposed to weigh in his or her decision or going forward in prosecuting an individual.

These are the No-Nos.

The prosecutor should never consider the following in making the decision to take any action against an individual:

• race
• religion
• gender
• ethnicity
• national origin
• sexual orientation
• political association
• political activities
• political beliefs
• the prosecutor’s personal feelings about the person
• the prosecutor’s personal feelings about the victim
• the prosecutor’s personal feelings about the person’s associates
• what might happen to the prosecutor personally or professionally if he or she decides to prosecute (or to refrain from doing so).

All these things are considered to be “improper influences” by the federal government.

Sharing Things with the Defense

As we’ve seen in our earlier discussions on prosecutorial misconduct, one of the biggest problems with government attorneys is their failure to share the stuff in their files with the defense.  Which they are legally required to do:  anything factual that the prosecution has in its investigatory files needs to be shared with the defense.  That’s basic due process.

See:

• Prosecutor Withholding Evidence from Defense in Federal Criminal Case
• Prosecutor Caught Withholding Evidence from Defense AGAIN
• DA Watch: Death Row’s Henry Skinner sues Fed Prosecutor Lynn Switzer for Withholding DNA Evidence He Says Clears Him

In PFP 9-27.750, the prosecutors are given guidance on “Disclosing Factual Material to Defense” in a provision that was updated in January 2017.  This applies to sentencing.

Here, they are told that they should share with the defense “any factual material” that is not already a part of the presentence investigation report if they intend to bring it to the attention to the judge.

And they are also instructed that they are not to sandbag the defense lawyer at the eleventh hour.  This stuff is to be provided “reasonably in advance of the sentencing hearing.”

What is this stuff?  It’s every bit of the material that will be provided by the prosecutor to the judge who will be sentencing the defendant.  That includes any memo written by the prosecution, too.

Prosecutorial Misconduct:  The Prosecutors Know Better

Here’s the thing.  Prosecutorial misconduct and over-zealous government lawyers run roughshod over justice because of their own personal reasons.  Maybe they really do think that marijuana is a serious evil and that teenager deserves the same kind of sentence that a hardened addict arrested in a heroin bust should receive.

Maybe they are ambitious and are so sold on the guilt of the individual that they think withholding evidence does no harm.  Or that it won’t matter.

But they all know better.  They are instructed on how their prosecutorial decisions should be made and given specific written guidelines on how they are to use their power against the accused.

Unfortunately, until the epidemic of prosecutorial misconduct is resolved, it remains the job of the criminal defense lawyer to protect against it.  There is simply insufficient self-regulation among prosecutors in this country.

So it’s the defense attorney that has to observe the prosecutor’s actions, even as they fly in the face of these prosecutorial principles, and fight hard with things like Motions to Dismiss and Motions to Suppress because of prosecutorial misconduct.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”