Prosecutorial Discretion in a Domestic Battery Case

My question involves criminal law for the state of: Michigan


Pehaps ignorant question regarding prosecutor's discretion for filing crime. Do prosecutors often analyze the motivations (i.e. vindiction, sustained injury, loss), character (i.e. criminal record), and demographic (i.e. women vs. men victims) of represented victims when assessing the merit of their case? Or are prosecutors bound to making this judgement exclusively on facts and elements of the crimes in and of themselves. Do prosecutors have this sort of discretion in the criminal justice system? For example, can a prosecutor refuse to pursue a perfectly prosecutable offense because he sensed it merited destructive revenge as opposed to more constructive outcomes for society as a whole or relationships. Or can he refuse to prosecute because the victim has an exhaustive criminal record for domestic violence and the defendant is a woman? What is the extent a prosecutor can consider external circumstances beyond merit of the crime itself, limitless?

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Quoting Jache

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My question involves criminal law for the state of: Michigan


Pehaps ignorant question regarding prosecutor's discretion for filing crime. Do prosecutors often analyze the motivations (i.e. vindiction, sustained injury, loss), character (i.e. criminal record), and demographic (i.e. women vs. men victims) of represented victims when assessing the merit of their case? Or are prosecutors bound to making this judgement exclusively on facts and elements of the crimes in and of themselves. Do prosecutors have this sort of discretion in the criminal justice system? For example, can a prosecutor refuse to pursue a perfectly prosecutable offense because he sensed it merited destructive revenge as opposed to more constructive outcomes for society as a whole or relationships. Or can he refuse to prosecute because the victim has an exhaustive criminal record for domestic violence and the defendant is a woman? What is the extent a prosecutor can consider external circumstances beyond merit of the crime itself, limitless?

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Prosecutors are people. They might analyze anything based upon subjective ideals ... or, they might proceed based solely on objective criteria. More often than not, a prosecutor will proceed with a prosecution if they feel that they can prove the case beyond a reasonable doubt to a jury. The DA will generally NOT have to explain his reasons for not filing a case to anyone.

Thank you sir,

I imagine the same subjective criteria could be applied by a police agency in determining whether or not to investigate a case? Just because a victim has all the evidence necessary to prove a crime does not guarantee that an agency will investigate and pursue action? For example, is it quite common for a police agency to deny an investigation for complaining victim who was previously a convicted defendant pursued by that agency? Even if the crime can prosecuted with certainty?

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Quoting Jache

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Thank you sir,

I imagine the same subjective criteria could be applied by a police agency in determining whether or not to investigate a case? Just because a victim has all the evidence necessary to prove a crime does not guarantee that an agency will investigate and pursue action?

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That depends. Some crimes might have a statutory requirement to be investigated. Most do not. However, all because it must be investigated does not guarantee that the investigation will be thorough.

The police have to prioritize resources as do prosecutors. if the offense is not all that serious, or is too difficult to prove, then it is more likely that the matter may not be pursued.

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For example, is it quite common for a police agency to deny an investigation for complaining victim who was previously a convicted defendant pursued by that agency? Even if the crime can prosecuted with certainty?

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In theory, a law enforcement agency is required to treat all complainants equally. However, credibility can and will come into play. If you have someone who has been a defendant and convicted of crimes that tend to undermine their credibility, then they become a very tenuous witness/victim and absent some clear objective evidence, the case may not be pursued. All because YOU think it can be pursued, it may not be. If the evidence requires testimony on the part of a victim with a credibility problem (perhaps from prior convictions for crimes of moral turpitude such as thefts, fraud, forgery, perjury,etc.) then the matter could be dropped early on. Objective evidence that can be presented without the testimony of the tainted witness would stand a better chance.

But, as officers and prosecutors are people, their thoughts on a victim or witness can and will play a part in the overall consideration of whether a matter is to be investigated or prosecuted. We can never entirely remove human nature from the equation.

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Quoting Jache

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My question involves criminal law for the state of: Michigan
What is the extent a prosecutor can consider external circumstances beyond merit of the crime itself, limitless?

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The prosecutor must have at least probable cause in order to pursue the case. He or she should also believe there is a decent chance that the case may be proven beyond a reasonable doubt to the jury or judge before filing charges because pursuing a weak case and losing is a waste of everyone’s time and resources.

But a prosecutor has nearly unfettered discretion to refuse to prosecute a case. And the reasons for refusing to pursue a case do not have to be limited to an assessment of whether the evidence is sufficient to win a conviction. All sorts of considerations come into play. Certainly the resources that the prosecutor has available matter. Most prosecutors have limited resources and cannot pursue every singe case that might be successfully prosecuted. Also, notions of justice come into play, too. A person might be technically guilty of a crime but upon review of all the circumstances a prosecution for that crime might be perceived as unjust. And, too, politics sometimes comes into play. Some prosecutions might simply be too difficult politically to manage: either risks of civil unrest, damage to the prosecutor’s office, or other political or social concerns might weigh in favor of not pursuing a case.

Not all prosecutor decisions are sound, of course. Among those that are often criticized today, for example, are decisions failing to pursue white racists for attacks on Black Americans in the first 7 decades of the last century, particularly during the period of the civil rights movement of the 1950s and 1960s. And, on the other side, prosecutions of persons by the government in the 1950s and 1960s for supposed communist ties and other political associations have also been severely criticized.

Thanks again sir,

I very much appreciate your exhaustive explanation of these dynamics, it is very interesting to me and I have always wondered. I don't want to take up more than your due time, but I had one last question here. And its more personal. When you contact a police agency to report a crime and you are never put into direct communication with the investigative powers held, rather your complaint is facilitated either electronically via email, or as a message on their voicemail, do most agencies have some policy about guaranteeing at least some correspondence back via investigating officer or a case number within a certain time frame? Just to acknowledged the complainant that their communication had been reviewed? Specifically, is there any recourse for an agency that ignores but never refused or banned contact from a past high-profile defendant who had all his charges dropped, and now is calling from another state where he lives? And who has never been admonished otherwise by that agency. Not even the lieutenant supervisor will return very cordial and genuine communication, thus completely shutting him out from their agency. Can anything be done here?

I'm going to answer out of my own experience.

I reported a case of internet-based extortion to the FBI. I received an automatic bounce-back response that acknowledged receipt of the report, told me where to send any supplemental evidence I may receive, and expressly told me that I would NOT receive any further acknowledgement or be told what the final resolution was. It is not your right under the law to be given any information whatsoever about the investigation or the eventual results.

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Quoting Jache

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When you contact a police agency to report a crime and you are never put into direct communication with the investigative powers held, rather your complaint is facilitated either electronically via email, or as a message on their voicemail, do most agencies have some policy about guaranteeing at least some correspondence back via investigating officer or a case number within a certain time frame?

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No, most agencies make no promises with regards to contact or the status of a criminal investigation. While some states have Victims' Rights legislation that allows them to be kept in the loop, these mainly have to deal with a victims' right to be informed of prosecution, arrests, or other key milestones within the investigation, not a detailed update. In fact, it is very often COUNTER-productive to feed a victim/witness info on the case because it can unduly taint the witness (victim) testimony, or, can cause cross-contamination as the witness (victim) speaks to other possible witnesses and passes along information that can taint those other parties. It really depends on the nature of the investigation and the investigator, not so much on any agency policy on keeping a complainant in the loop.

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Specifically, is there any recourse for an agency that ignores but never refused or banned contact from a past high-profile defendant who had all his charges dropped, and now is calling from another state where he lives?

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What kind of recourse, and for what? The agency has no LEGAL requirement to speak with the person. If he is a victim/complainant in a case, they may have to speak with him and accept a report of criminal activity from the person, but if calling from out of state and not immediately available as a witness to a criminal matter, any case he reports may be put on a back burner depending on the nature of the complaint.

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Not even the lieutenant supervisor will return very cordial and genuine communication, thus completely shutting him out from their agency. Can anything be done here?

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Legally? Not really. If he feels his criminal complaint is not being taken seriously, he can speak to the county prosecutor's office and see if they will assist him. Or, he can talk to the state police or even the feds if they have jurisdiction. Odds are, if the locals are not addressing the matter, those other agencies will not intercede, either.

About all he can do is make the report and then move on. If he has grounds for a civil suit against a suspect, then he can hire an attorney and sue the person for damages in a CIVIL court. THEN the complainant will be able to control the process far better than he can control a criminal investigation.