A Prosecutor's Duties

The Prosecutor's Duties When the Criminal Charges are Not Supported by Probable Cause

The rule is that a prosecutor, district attorney or city attorney, must never file criminal charges or continue to prosecute a case when the prosecutor personally believes the defendant to be innocent.  This concept was outlined in Berger v. U.S., a 1934 Supreme Court case

California Rules of Professional Conduct 5-110 generally states that, if after the filing of the criminal charges the prosecutor responsible for prosecuting the case no longer believes the charges are supported by probable cause, the attorney must inform the court in which the case is being heard.

Errol Cook, Esq.
(562) 209-1114

Prosecutor Believes the Defendant is Innocent

What Should a Prosecutor Do When they Personally Believe the Defendant is Innocent?

If a prosecutor personally believes that the defendant is innocent in a criminal prosecution, then they should dismiss the charges....or...reassign it to a prosecutor who actually believes in the validity of the charges.  This creates an ethical problem in that a prosecutor with more experience with the facts of a case must either dismiss the charge or give a case to a prosecutor who knows little of the facts of the case.  Additionally, when should this decision be made...at the arraignment or before trial?  Should there be an office review of such cases and, if so, who should lead the review team? 

Errol Cook, Esq.
(562) 209-1114

When Should a Prosecutor Refuse to File Criminal Charges?

Should the Prosecutor Pursue the Charges?
The general rule is that a prosecutor should not file criminal charges in a case when they personally do not believe that the criminal charges are supported by probable cause.  This means that the standard for filing and/or pursuing charges is the prosecutor's "personal" belief.  This may cause conflict between a superior/managing prosecutor and a subordinate prosecutor.  Although the rule is clear as to a "personal" belief in the charges, many prosecutors, being fearful of being demoted or fired, are reluctant on dismissing a case despite this clear standard.  With the current state of the legal profession, many prosecutors are fearful of losing their job.  A prosecutor who is viewed as too lenient won't get promoted and will often times get stuck in unappealing assignments. 

Errol Cook, Esq.
(562) 209-1114

A Prosecutor Dismissing a Case

What Happens When the Prosecutor Moves to Dismiss a Case?

If the prosecutor request the judge or judicial magistrate to dismiss a case because the prosecutor believes there is not sufficient probable cause to support the charges, along with the reasons, and the court denies the motion, then the prosecutor may continue the prosecution.  This concept not only presents an ethical problem in that the judge is now encouraging a wrongful prosecution and is stepping outside of its role as a neutral fact finder. 


Errol Cook, Esq.
(562) 209-1114