Prosecutorial Dismissals As Teachable Moments (and Databases) for the Police

22 Pages Posted: 14 Oct 2017

Date Written: October 13, 2017

Abstract

The criminal justice process typically begins when the police make a warrantless arrest. While police usually do a good job of bringing in the “right” cases, they do make mistakes. Officers sometimes arrest suspects even though there is no evidence to prove an essential element of the crime. Police also conduct unlawful searches and interrogations. And officers make arrests in marginal cases – schoolyard fights are a good example – in which prosecutors do not think a criminal conviction is appropriate. Accordingly, prosecutors regularly dismiss cases after police have made warrantless arrests and suspects have sat in jail for days or even weeks. In a functioning criminal justice system, we should expect prosecutors to use dismissals as “teachable moments” for the police so that officers can avoid making incorrect and unnecessary arrests in the future. Yet, as this essay documents, prosecutors do not always notify police about the errors that led to their cases being dismissed.

This essay proposes that prosecutors inform police officers that their cases were dismissed and the reasons for dropping charges. This dismissal information will educate police officers about the elements of crimes in the penal code, the realities about which cases are difficult for prosecutors to prove, as well as the charging policies of the prosecutor’s office. Dismissal information will enable police officers to better decide when to make warrantless arrests, and it should reduce the number of weak cases that are input into the criminal justice system in the first place. In turn, reducing case inputs will benefit overburdened criminal justice actors – prosecutors, public defenders, judges and court staff – by enabling them to spend more time on cases that will not be dismissed outright. And having police avoid unnecessary arrests will benefit defendants by avoiding needless incarceration and the cascade of other repercussions that follow an arrest.

This essay also proposes that prosecutors – particularly in large offices – create a dismissal database that will identify problem officers who repeatedly bring in weak cases that have to be dismissed. Prosecutors can then recommend that police departments provide further training to those officers. A database might also limit the moral hazard problem of police being judged only on their arrests rather than case resolutions. Finally, prosecutors should embrace this proposal because a dismissal database would not dramatically increase the amount of Brady evidence prosecutors would be required to disclose.

Keywords: dismissal, dismissal notification, warrantless arrest, erroneous arrest, unnecessary arrest charging, moral hazard, Brady, police error, database

Suggested Citation

Gershowitz, Adam M., Prosecutorial Dismissals As Teachable Moments (and Databases) for the Police (October 13, 2017). George Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3052991

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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