Patterico's Pontifications


Police as Prosecutors

Filed under: Law — DRJ @ 12:27 pm

[Guest post by DRJ]

Does a prosecutor have to be an attorney? Maybe not in New Mexico misdemeanor cases.

In February, a southeastern New Mexico District Attorney issued a new policy that transfers the duty to prosecute misdemeanor cases from the DA to the police department. Now two local police unions have sued, claiming the DA should prosecute cases:

“The unions representing the Carlsbad and Hobbs [New Mexico] police departments have filed a lawsuit against Fifth Judicial District Attorney Janetta Hicks, seeking to force her to change a policy that requires arresting police officers to try misdemeanor cases in magistrate court.
In February, Hicks sent an e-mail to all Fifth District sheriff’s and police departments announcing that the district attorney’s office would no longer prosecute all misdemeanor cases in magistrate court. The Fifth Judicial District includes Eddy, Chaves and Lea counties. Prosecutions would be limited to drunk driving and domestic violence cases involving intimate partners and which showed a “potential for escalation.”

The DA attributes the change in policy to budget and personnel limitations.

Until I read this article, I assumed the rules of every State required prosecutors to be licensed attorneys. But even if court and bar rules allow laymen to act as prosecutors, I’m leery of authorizing the police – and especially the arresting officer – to act as prosecutor. First, it eliminates the DA from any oversight role and in some cases will force the prosecutor to wear two hats, first as attorney for the State and second as its primary witness. (If the arresting officer is the prosecutor, he will either have to question himself or testify by narrative. That can happen with pro se litigants and defendants but it’s procedurally and ethically awkward.)

Second, in the long run there will likely be reduced misdemeanor arrests (because more police will be in court instead of on the street) and fewer successful misdemeanor prosecutions. IMO neither will have a positive effect on community safety.


26 Responses to “Police as Prosecutors”

  1. Many petty misdemeanors and CFR violations in National Parks or on National Forest lands are handled before federal magistrates by specially trained Park Rangers, and not federal prosecutors.

    One difference from that described in the articles is that the specially trained Ranger is not the arresting officer. 99% of these cases end in a plea, and the only issue involves the size of the fine or other restrictions that might be placed on the defenadnt in terms of Park usage — like being banned from a Park for 6 months if they start an illegal camp fire, etc.

    Shipwreckedcrew (e73ed2)

  2. The mere lack of a law degree is not the problem; indeed there are quite a few law enforcement personnel who have law degrees.

    Separation of prosecutorial functions from law enforcement and investigation is a cornerstone of due process. California Court of Appeal Associate Justice Bedsworth said it best: the job of prosecutors is to ensure that the defendants have a fair trial (not the best trial, just a fair one). It is the job of the police to catch them and build the case.

    This policy confuses to the two roles. It ought not survive a due process challenge.

    Cyrus Sanai (ada6da)

  3. Thanks, Shipwreckedcrew. Once again, I’ve learned something new on the internet. I guess the police will train someone to handle these cases if the policy stays in place but I’m still not sure I like this idea.

    DRJ (2901e6)

  4. Good point, Cyrus. We’ll see what happens. I think there is a hearing today on the police request for an injunction.

    DRJ (2901e6)

  5. Aaack. I think this is a terrible idea … the enforcement power and the prosecutorial power should be separated, not least because there’s an inherent conflict of interest in doing both at the same time.

    aphrael (e0cdc9)

  6. Putting non-lawyers into the role of prosecutor, even on misdemeanors, is a horrible, horrible idea. There are canons of legal ethics unique to prosecutors. Non-lawyers aren’t bound by them. Policemen may be “professional” in their performance of their jobs, but they’re not similarly at risk of losing a license to practice their profession if they violate such a code. The canons which require, broadly speaking, that prosecutors be more than just “win at all cost” advocates are a crucial part of the checks and balances of the rule of law. Ultimately the public’s confidence in the integrity and ethical behavior of both its prosecutors and its police are parts of the glue which hold together our society and enable the rule of law to operate, but their roles are, and should remain, distinct or that glue will begin to fail.

    Beldar (9bf4d5)

  7. Until it was changed in the 70’s or 80’s, a Justice of the Peace in California did not have to be a lawyer.

    Kevin Murphy (805c5b)

  8. I would like to think about this a little more, but, it seems to me, that petty offenses and misdemeanors which can be charged just on the basis of the signature of the complaining witness, can also be tried by the complaining witness. I don’t see the due process question. Because there isn’t one. Just as there isn’t one in any other pro se case. There may be a little awkwardness in taking testimony.

    nk (e71733)

  9. Comment by Beldar — 5/29/2009 @ 1:19 pm

    The thing is that charging petty offenses and misdemeanors does not require the exercise of prosecutorial discretion. Anybody can sign a complaint and bring the case into court, with, if necessary, an arrest warrant, bail, and incarceration in lieu of bail. It’s the way our system is.

    nk (e71733)

  10. It worked for Wyatt Earp. What could go wrong ?

    Mike K (2cf494)

  11. It also worked the opposite way for Wyatt Earp, Mike K. He, his brothers, and Doc Holliday, stood trial for murder for the gunfight at the Ok Corral.

    nk (e71733)

  12. Inspiring a Star Trek episode in the process.

    Brother Bradley J. Fikes, C.O.R., (8a3abc)

  13. We’re not quite that wild out here, at least not anymore.

    DRJ (2901e6)

  14. Do JPs in Texas have to be licensed attorneys? I believe theirs is NOT a court of record, so that if you’re are unhappy with the outcome you can go to the next level court of record and start over.

    steve (d6ca22)

  15. We’re not quite that wild out here, at least not anymore.

    Comment by DRJ — 5/29/2009 @ 2:00 pm

    The Wild West had disappeared in Texas by 1874? It lasted in New Mexico and Arizona until 1881? And then it moved East into Oklahoma and Arkansas for a few more years?

    nk (e71733)

  16. steve,

    There are several Texas courts that you do not have to be a lawyer to serve as judge, including some county courts at law, county courts, JP courts, and municipal courts. As shown in this chart, lawyers make up 99% of all Texas county courts at law judges; 14% of county court judges; 9% of JP court judges; and 58% of municipal court judges. In my experience, some non-lawyer judges are in counties where there may be only a handful of licensed lawyers. The remainder are generally in small-to-mid-size counties.

    You didn’t say this and I don’t want to put words in your mouth, but I think there is a big difference between a layman judge and a layman prosecutor. Judges can learn the rules and officiate in routine and/or small dollar cases that come before the lower-level courts. But, as Beldar addressed above, prosecutors have more discretion and ethical responsibilities that require legal training. In addition, I’m not sure about New Mexico but in Texas some misdemeanors are punishable by 180 days to a year in jail. I don’t want pro se prosecutors handling those cases.

    DRJ (2901e6)

  17. Hey – if they made the cops judge and jury too, they could really save money!

    mojo (8096f2)

  18. You cannot go to jail, after Gideon, without an attorney (unless you scream and yell for several hours that you do not want one). In Illinois, without the choice of a jury, too. So send me up against a cop or some nosy neighbor, please, instead of a trained Cook County State’s Attorney.

    nk (e71733)

  19. That’s part of my point, nk. I know and like a lot of defense lawyers who I’m sure would love this new policy, but I want both sides to have trained counsel.

    DRJ (2901e6)

  20. Leave it to the lawyers to screw things up.


    daleyrocks (5d22c0)

  21. I agree with most of you: this is a bad idea.

    Paul (creator of "Staunch Brayer") (14d6a1)

  22. I’m not sure if it is still the law in North Carolina or not, but back in the mid-1990s, I spoke with a DEA agent I knew who transferred to a North Carolina office.

    He told me that the first time he went with a local police narcotics agent to obtain the signature of a local “magistrate” on a search warrant, they pulled into the parking lot of WalMart.

    The DEA Agent asked the local narcotics detective if they had overlooked some needed supply, and he said “No, I’m going to see the magistrate to get the warrant signed.”

    The Magistrate was the assistant manager of the local WalMart. The local superior corut judges hired the magistrates, and there was no requirement under state law that they have any particular qualification or education/training.

    So, the Assistant Manager of Walmart made the call on whether there was sufficient probable cause in the affidavit to invade the Fourth Amendment rights of the person whose home was going to be searched.

    Is this a beautiful country, or what?

    Shipwreckedcrew (e73ed2)

  23. So, the Assistant Manager of Walmart made the call on whether there was sufficient probable cause in the affidavit to invade the Fourth Amendment rights of the person whose home was going to be searched.

    What could possibly go wrong?

    Paul (creator of "Staunch Brayer") (14d6a1)

  24. So, the Assistant Manager of Walmart made the call on whether there was sufficient probable cause in the affidavit to invade the Fourth Amendment rights of the person whose home was going to be searched.

    What could possibly go wrong?
    Sorry, forgot to add great post! Can’t wait to see your next post!

    Paul (creator of "Staunch Brayer") (3fb4a8)

  25. While in Security in the Navy in the mid 80’s, we “prosecuted” our own minor traffic infractions in front of a federal magistrate. If memory serves me correctly, max fine was $50.

    Anything else required the lawyers at base legal to handle.

    Was a very limited list we could handle, and they could always request a jury trial.

    Gerald A (211bc7)

  26. I’m a cop in South Carolina. In many jurisdictions here officers are expected to act as prosecutors in municipal-level cases (the distinctions between “misdemeanor” and “felony” in SC are…arcane, to but it mildly). This is especially true of State Troopers in far-flung districts.

    In the academy, they presented a brief module on presenting a case before a jury and conducting cross-examination. I thought, “Really? REALLY?”

    Mars vs Hollywood (f062b9)

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