So Starts the Ride

The maxim says it all, you can beat the rap but you can’t beat the ride. (Source? I think it was a line from the TV show Baretta, but I can’t find any authoritative source for a line that’s become fundamental to criminal law.)

In a fascinating article at HuffPost, Radley Balko raises some tough questions. Despite the trendy hook relying on the Z-word to capture your interest, it goes on to raise more serious questions about the interrelationship between the moment you find yourself on the wrong side of a cop and the life-altering reality of becoming embroiled in the criminal justice system.


The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

*  *  *


Currently, the accepted standard to bring a charge against anyone is probable cause, the same minimal standard needed to make an arrest. That standard remains the same from the time the charge is brought until the time the judge turns the case over to the jury to reach a verdict.


This reflects a somewhat skewed understanding of how the system is meant to work.  While the standard required of a police officer for an arrest is probable cause, the fact that a cop has arrested someone isn’t (or more accurately, shouldn’t be taken as) a conclusive demonstration that PC exists.  Between the moment of arrest and the initiation of the prosecution, there are three independent steps.

First, the cop decides for himself that he has probable cause to believe a person has committed a crime.

Second, the cop brings his belief to a prosecutor, who then drafts the accusatory instrument. The prosecutor, whose duty is to “do justice” rather than acquiesce to the cop’s determination, then vets the cop’s allegations to decide whether, and to what extent, a crime has been committed.

Third, the prosecutor presents the accusatory instrument to a neutral magistrate at arraignment, The neutral magistrate, as part of the process of arraignment, must determine whether the accusatory instrument is facially sufficient to proceed with the prosecution.

If the system worked as conceived, probable cause would be considered three times before the initiation of a prosecution.  Of course, the system rarely works as conceived.  Initially, there is a problem with the very words, probable cause. Like  most language used to express an idea, we think we know what it means because we say the words often enough, but we’ve merely become desensitized to them.

Despite the somewhat obvious meaning of the word “probable,” meaning more likely than not, probable cause was mucked up by the Supreme Court in Texas v. Brown, as  Jeff Gamso likes to remind me.


Except, of course, that the Supremes have said (Texas v. Brown, plurality opinion that everyone quotes favorably) that probable cause, whatever it actually means, means something less than “probably.”

“As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).”

This raises some hugely disturbing problems, in that the standard is so utterly fuzzy, so worthlessly subjective, as to cover all but the most flagrantly baseless accusations.  It need not be “probable,” as the word is normally defines, nor even likely true.  As is typically the case, the language used, “a flexible, common-sense standard,” provides essentially no guidance. 

That the cop has decided he has probable cause to arrest is a given, since the decision not to arrest would be the end of the discussion as there would be no prosecution.  While we don’t hear about non-events, it happens that a police officer decides to exercise his discretionary authority to not pursue an arrest.  How often is impossible to say, but it happens.

When the cop brings the case to the assistant, usually a new attorney who is cutting their teeth at arraignments and is often somewhat awed by the veteran cop who “knows stuff” that the prosecutor doesn’t, it’s left to this rookie to write up the charges.  Often, the charge for which the arrest was made isn’t the same as the charge(s) that appear in the accusatory instrument.  The prosecutor converts the cop’s factual allegations into legal ones, noting what elements of crimes are met and then charging accordingly.

The prosecutor has the authority to toss a case, to decide that the cop’s claims fail to make out a crime, or that the evidence is so bad that the case is going nowhere.  This happens sometimes, and the putative defendant is told, usually without explanation, that he’s free to go. 

During this phase of vetting, the prosecutor’s job isn’t so much to second-guess the cop, but rather to consider the facts in light of the elements of a crime and substantial evidentiary rules.  Of course, if he has reason to believe the cop is lying, that too would be a pretty good reason to toss a case. At this stage, the prosecutor is a theoretical neutral in the process, deciding whether to use the awesome power of his office if it serves the greater interest of justice.

Finally, the accusatory instrument is presented to the court, where a judge is supposed to serve as the ultimate gatekeeper of the courthouse.  The judge is expected to be a true neutral, with no allegiance to either side and no interest in seeing a prosecution proceed or not, other than as the law requires.  Upon reading the accusatory instrument and considering whether the allegations of fact are sufficient to give rise to probable cause to believe that each element of the offense, the judge can stop a prosecution dead in its tracks at that moment. Indeed, the judge is the stop-gap, the fail-safe, for the person who is about the enter one of the worst times of his life. 

The problem with this very nice, very sanitary discussion is that the process doesn’t necessarily happen this way.  Radley attributes this to a need for a higher burden before subjecting a person to the rest of the ride (since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment).  I have little faith in amorphous legal standards to begin with, and am firmly of the view that all the players in the system can ignore a higher standard just as easily as they ignore a lower one.

Not that I have anything against a higher burden before subjecting a person to the nightmare of prosecution, but the fundamental problem with the system as it currently works is that it relies on each of the players faithfully performing the duties of their office.  Until that happens, and happens in every case, the system fails. No standard, no matter how clear or vague, high or low, is going to make a system work when those charged with protecting people from baseless prosecution close their eyes and pass their responsibility down the line.

10 comments on “So Starts the Ride

  1. Onlooker

    “(since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment)”

    Can you elaborate on this? Or a pointer to another of your posts if that’s appropriate. I’m sincerely interested.

    As I’ve had the scales fall from my eyes over the years, regarding the “justice” system, I’ve been striving to learn and understand more of how it actually plays out. And Law and Order just isn’t doing it. ;-)

  2. tom felding

    If “probable cause” is a fuzzy term, isn’t “reasonable doubt” a fuzzy standard as well. I suppose a grand jury is supposed to bring the fuzzy into something concrete just as the jury in the trial. Though, I wonder how often a grand jury refuses to return an indictment.

  3. SHG

    I would be happy to do a memorandum to answer your concerns at my usual fees. Was that what you were asking for?  I could (because I know the answer) but I really don’t do requests, if you get my drift.

  4. Onlooker

    OK, OK, I get it. I don’t expect you to perform on command. Mostly I was just wondering if you’d already written on the subject and could point me there.

    No big deal. Take it as a compliment (not that you need those) as I have come to respect your insights on these matters. And no, I don’t think flattery is going to inspire you to perform for free!

  5. Frank

    “Probable cause is whatever I say it is!”

    Direct quote from a DC police officer in 1986.

  6. John Neff

    Yep. That will happen when the prosecutor and the judge keep the cops on a long (or no) leash.

  7. Lurker

    Would it be better to describe the US criminal justice system as investigatory, not as accusatory. In my view, it is built upon a two separate phases: the prosecution and the adversary process. The adversary process only concerns about 3% of the cases, so it is, for most purposes, an unimportant detail that can be overlooked.

    The process is initiated by the police who bring the charge to the prosecutor. If the crime is an important one, the prosecutor is actively involved in the investigation from the beginning, and during this process, he decides, upoin his own initiative, which crimes should be prosecuted.

    After the formality of arraignment, the prosecutor negotiates with the defender of the correct punishment to those who have been judged guilty by the prosecutor. Then, the court makes the formal sentencing on this basis, with little interest to change the prosecutor’s decision. This is not a bad system, but it is not an adversarial one and it is fraught with possibilities for misconduct.

    Of course, there is the possibility to opt out to the adversary system, but the trial tax is instituted to make it sure that people stay in the investigatory system.

Comments are closed.