Charging Without Probable Cause

Charging Without Probable Cause

Rule 3.8(a) governs the first and most consequential decision a prosecutor makes: whether to charge at all. The prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."¹ Probable cause is the ethical floor, and a prosecutor meets the formal duty by ensuring that every charge rests on it.²

The rule attaches at charging because the harm of an accusation arrives long before any verdict. Professors Monroe Freedman and Abbe Smith describe a formal accusation by information or indictment as damaging the defendant's reputation immediately and frequently beyond repair, even if the defendant is ultimately acquitted. Anguish and anxiety settle over the defendant, the family, and friends, and the strain has been known to destroy marriages. The financial burden can be enormous, because the accused may lose a job to pretrial detention, hearings, and trial, or simply to being named a criminal defendant.³ An unsupported charge inflicts all of that without legal justification.

The operative word in the rule is knows. Paragraph (a) bars a prosecutor from prosecuting a charge only if the prosecutor knows that probable cause is missing. As Professors Ronald Rotunda and John Dzienkowski observe, that knowledge requirement makes the provision unlikely to serve as a basis for discipline in the vast majority of cases.⁴ A prosecutor who presses a shaky case but has no information showing that probable cause is lacking holds doubts, not knowledge, and the rule does not reach doubts.

The rule's wording leaves a gap, and commentators argue for closing it. A prosecutor should not be allowed to proceed in outrageous ignorance of the supporting facts, or with unreasonable irrationality, and then excuse the charge by saying he never actually "knew" that probable cause was missing. A reasonably competent and prudent prosecutor conducts a diligent inquiry into the basis for a proposed charge, and the ABA's Standards for Criminal Justice build that expectation in. They say a prosecutor should seek or file a charge "only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice."⁵ The Standards therefore ask more than the Model Rule in three ways. Reasonable belief replaces actual knowledge. The evidence must be admissible and sufficient to convict beyond a reasonable doubt, which is more than probable cause. And the charge must serve the interests of justice. The Model Rule itself keeps the knowledge standard, and the reasonable-belief formulation belongs to the Standards. An ethically responsible prosecutor's office will meet the Standards as a matter of course.⁶

The duty to refrain does not end at filing. The prosecutor must keep reassessing whether the charge still has sufficient evidentiary support in light of new information from continuing investigation, pretrial discovery, and developments at trial.⁷ A grand jury indictment does not relieve the prosecutor of that task. The prosecutor retains ultimate responsibility for the charge and "has authority, and sometimes a responsibility, to move for dismissal of an indictment."⁸ A charge that was supported on the day of filing can lose its support, and the harms of accusation continue for as long as the defendant remains under prosecution.

An acquittal proves less than it seems to. A not-guilty verdict means only that the trier of fact had a reasonable doubt about guilt, a far more demanding standard than probable cause, so a charge can be well supported at filing and still fail at trial. For that reason a disciplinary charge cannot legitimately rest on a later acquittal alone.⁹ The question remains what the prosecutor knew about the evidence when filing or continuing the charge.

A dissent in Town of Newton v. Rumery shows the conflict that paragraph (a) guards against. The case concerned a release-dismissal agreement, under which a prosecutor drops criminal charges in return for the defendant's release of civil claims against the police. The dissent insisted that the public is entitled to have the prosecutor's decision to go forward with a case, or to dismiss it, made independently of concerns about the police department's potential damages liability. That separation fails, the dissent reasoned, if the prosecutor may use the threat of criminal prosecution as a weapon to obtain a favorable termination of the civil claim.¹⁰ When the threat of prosecution becomes a bargaining chip, the strength of the charge stops being the only thing that matters, and the probable cause duty exists to keep it the thing that matters. The dissent added that the prosecutor's conflict of interest grows in direct proportion to the seriousness of the alleged police wrongdoing. A rule that tests such an agreement only by the quality of the defendant's decision to sign cannot detect that conflict, because it cannot separate meritorious § 1983 claims from frivolous ones.¹¹

Probable cause sets the floor, and above it the choice belongs to the prosecutor. A prosecutor may charge only conduct the legislature has made a crime, but among charges supported by probable cause, the decision to bring one with a greater or lesser potential punishment is within the prosecutor's discretion.¹² That discretion is broad, but it has statutory, administrative, ethical, and constitutional limits, and Rule 3.8(a) is one of the ethical ones. A charge can therefore satisfy the rule and still fall short of the Standards, which also ask whether admissible evidence will suffice to convict and whether charging serves the interests of justice.¹³