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Prosecutor Dominance of the Warrant Decision: A Study of Current Practices

Publication Title

Washington University Law Quarterly

Abstract

This Article is a by-product of the authors’ participation in the analysis phase of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States. The ABF study, underwritten by a Ford Foundation grant, is concerned primarily with isolating and identifying the critical problems in current criminal justice administration.

The complete study, to be published soon, is based upon detailed observation of the actual practices of police, prosecutors, courts and probation and parole agencies in Kansas, Michigan and Wisconsin. The law in action part of this article is also based on that data. Primary emphasis is on the class of cases in which the police seek a warrant because they believe, among other considerations, that the evidence is sufficient to justify charging.

In that class of cases, a study of current administrative practices indicates two general areas of concern: (1) the divergence between the formal allocation of power to issue warrants and the observed practice, and (2) the procedures used by prosecutors to insure that warrants are issued only on sufficient evidence. The first two following sections underscore the first problem and attempt to provide a functional explanation for the divergence. Judicial abdication of the formal power to prevent issuance of warrants not based on sufficient evidence to constitute probable cause leaves the power to make that determination in the prosecutor. Thus viewed, the system is seen as one dominated by the prosecutor in which the only practical restraints are self-imposed, and the third subsection explores those restraints.

The Article concludes with a contrast between the practical limitations on charging and the common assumption about the need for independent judicial determination of probable cause for issuance of a warrant.

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