Adam M. Gershowitz
86 Geo. Wash. L. Rev. 1525
The criminal justice process typically begins when the police make a warrantless arrest. Although 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 of the reasons for the dismissal. This 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, and 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 on 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.
