Thankfully, the D.A.’s office will at least give you an explanation for your case’s shortcomings, thereby providing you a means of staying out of the judicial slush pile in the future (at least until they come up with some equally creative excuse).
What follows are some of the reasons prosecutors have given for declining to file cases. Taken together, they provide a handy-dandy checklist of things to consider when you’re looking out for others in the judicial system.
It’s a Civil Case
Sometimes a cop shoehorns a civil case into criminal court. More often, I suspect, the court decides that the situation is something on the cusp and doesn’t want to waste time pursuing it. This is a popular out on vandalism matters between parties (particularly if there’s no copout and the would-be defendant alleges that the damages were not intentional). If you see a pattern emerging with your D.A.’s office handling of property damage matters, you may want to speak with the head D.A. to get a clear-cut explanation of what will get filed and what won’t.
Lack of Corpus
Sometimes the investigator authoring the report simply doesn’t do justice to his intentions. Often, this is a case of failing to document an articulable intent to an action. Forgetting a word or sentence can mean the difference between a misdemeanor or felon and even between a filing or a tossing.
Timeliness of Submission
This can mean everything from having the suspect arraigned in a timely manner to getting the case filed before the statute of limitations expires. If you’re not punctual in filing it, the prosecutor isn’t going to be punctual in trying it.
Insufficient Evidence
This is one of the biggest bugaboos, and sometimes you just have to live with it. You may have enough evidence to arrest but not enough to guarantee a successful prosecution, which means the D.A. is less apt to file. The case ends up as an officer hearing, diversion, or shit canned. Common examples include not establishing a clear connection between the suspect’s presence and accountability, e.g., more than one potential suspect could have committed the crime. Ownership is another. If you retrieve guns or dope from a suspect’s car, have you established ownership or sole accountability for the property? Asking the suspect simple questions such as: “Are you the only one who drives this car?” can help.
Suppressible Evidence
Did you justify your need for a protective patdown? What legal standing did you have to search? If the suspect’s furtive movements precipitate your search of his vehicle, does your report reflect as much? Did the person authorizing you to search an area have the authority to do so? Was the defendant the only person who had access to the contraband? Not if you don’t document as such.
Lack of Available Witnesses
This can mean everything from not having any identified wits to a one-on-one (suspect/witness) scenario, to having witnesses identified, but not available for court. Make sure that you identify as many witnesses as you can and then make damn sure they’re subpoenaed.
Conflicting/Impeachable Statements
OK, so you have your witness. But is he reliable? Does his version of events match up with the evidence and testimony from other witnesses? Next to not having a witness, the worst thing that an investigator can have is a witness who undermines his case because his credibility is no better than the suspect’s.
Other Investigative Mistakes
These include: statements obtained while in custody, but not under Miranda; failing to explain field show-up procedures or photo line-ups; not maintaining adequate chain of evidence; and telephonic copouts without being able to verify that you spoke with the actual suspect. (If you’ve had prior contact with the suspect and can recognize his or her voice, document as much.)
Some things are decidedly out of the investigator’s power. The D.A.’s office, in concert with the Board of Corrections, may elect to defer prosecution in favor of revocation of parole. A victim suddenly becomes unavailable or declines to testify, or reunites with her “misunderstood” or “persecuted” lover. Getting to know your filing D.A.s and maintaining an ongoing dialogue with them can help to minimize the likelihood of your case getting round filed.
How does all this affect you, the officer working patrol? Well, sometimes you’re the one taking the ball and running with it from arrest to case closure. But dishing off the ball to a detective isn’t dishing off responsibility.
By investigating the case with such factors in mind, you can develop a tighter case. Moreover, you may be the only person available to exploit a window of opportunity in getting a statement before the guy has a chance to make his legally required calls—calls that can be to people who will move or destroy evidence or to people who will corroborate a fabricated story.
