Prosecutor 101

MICHAEL W. MELITOOFFICE of the COLORADO ATTORNEY GENERALSPECIAL PROSECUTION UNITMay 8, 2012

WHAT’S THE POINT?

• Why prosecute crime?- Stop the conduct- Punishment- General deterrence- Specific deterrence- Enforce community expectations- Educate public- Protect Society

conduct

Criminal Charging Decisions

• Factors– Need for further

investigation– Nature of the Offender– Nature of the Offense– Motive– Traditional Crimes– Voluntary

Disclosure/Compliance

– Cooperation with law enforcement

– Preventative Measures Taken Subsequent

• Filed Directly with the Court– Statutory language– No facts

• Results in acquisition of Defendant to appear in court– Arrest– Summons

Charging by Information/Complaint

Pros/Cons of Information

• Pros

– Speed

– Flexibility

– Charging decisions made only by the prosecutorial team

• Cons

– Preliminary hearings

– Increases motion practice

Charging by Indictment

• Evidence presented to Grand Jury

• Indictment drafted for Grand Jury

• Deliberation to determine probable cause

• Upon finding of probable cause, filed with court

• Supervising court can order arrest and set bond amount

Pros/Cons of Indictment• Cons

– Requires presentation of case

– Indictments must contain facts relied upon to indict

– Grand Juries are juries

• Pros– No Preliminary Hearing

– True Bill (usually)

– Avoid allegations of malicious prosecution

– Lessens Motion Practice

– Evidentiary Rules

– Lack of Cross Examination

– Grand Juries are juries

• Investigations/Provide information for Search Warrants or Subpoenas◄

• Charging Methods-Complaint/Information/Grand Jury ◄

• Pre-trial Hearings/Evidentiary Hearings ◄

• Trial ◄

• Sentencing ◄

You Will be Involved in:

The Criminal Process

Ultimately the Prosecutor Needs Jury

Appeal• Give the case “APPEAL” (no pun intended)

– Law & Order, JAG, Alley McBeal, A Few Good Men– Traffic Court is not exciting– Exploding things are exciting

• Why should the jury care?

• Theme/Story/Motive

Goals of Prosecutors•Fairness

•Achieve Compliance with the Law

•Deter wrongful behavior

•Teach Public

•Create or foster Initiative

•Punish

•Other

• Contact the prosecutor to meet

• Review ALL relevant writings

• Know your issues and your piece of the puzzle

• “I don’t know”… is OK…

• Bobby Knight: “5P’s”

PREPARATION

• • Prosecutors are Prosecutors are actuallyactually nice nice peoplepeople

•• Counter your ANXIETYCounter your ANXIETY─ Thorough preparationThorough preparation─ Discuss weaknesses of your case Discuss weaknesses of your case ─ Show the hard work of your Show the hard work of your

company/agency to protect your company/agency to protect your company and/or the public company and/or the public

COMMON FINANCIAL CRIMES

1.Theft, § 18-4-401

2.Forgery, § 18-5-102

3.Attempt to Influence a Public Servant, § 18-8-306

4.Identity Theft, § 18-5-902

5.Tax Crimes (Evasion/Failure to Pay) § 39-21-118

6.Money Laundering § 18-5-309

7.Colorado Organized Crime Control Act,

§ 18-17-101 et seq.

WHERE TO FIND COCCA Cases?

W T F COCCA Cases?

Violation Of The Colorado Organized Crime Control Act—Participation In An

Enterprise

• 1. in the State of Colorado, at or about the date and placed charged,

• 2. while employed by, or associated with any enterprise,

• 3. knowingly,• 4. conducted or participated, directly or indirectly,

in such enterprise, through a pattern of racketeering activity.

Criminal Criminal EnterprisEnterprisee

AA

Criminal Behavior

Who are the targets?

“Bummer of a birthmark, Hal”– Gary Larson

THE COURTROOM

COMING TO COURT

• Check in• Sequestration• Refresh your recollection• Proper Conduct• Bring a book/Ipod

• Dress as a professional

• If your agency/company regularly wears a uniform, wear it

• Look like you have been to court before

• First impression key to your credibility

DRESSING FOR COURT

Discovery• Civil Discovery

– Work Product

– Attorney/Client

– Any other privileged material

• Criminal Discovery– Rule 16

– Work Product

– …but “Brady Material”

Government has the burden of proofGovernment has the burden of proof─ ─ Must prove guilt beyond a Must prove guilt beyond a reasonable doubtreasonable doubt

─ ─ ““. . . proof of such a convincing . . . proof of such a convincing character that, after consideration, character that, after consideration, you would be willing to rely and act you would be willing to rely and act upon it without hesitation in your upon it without hesitation in your important affairs. A defendant is important affairs. A defendant is never to be never to be convicted on mere on mere suspicion or conjecture.”suspicion or conjecture.”

POINTERS

• Discuss uncertainties• Mistakes will be made, keep an

open mind, we will…• Opinions vs. Fact… tell us

which • Be eager to do more

investigation when requested

• Let the Justice System do its job

─ Honesty

─ Track all Evidence

• It is not a game or a contest

Sentencing Options

• Incarceration

• Probation

• Fines

• Restitution

• Debarment (A civil action for defendants and corporate defendants)

• Other options

Michael W. Melito

Senior Assistant Attorney General

Michael.Melito@state.co.us

(303) 866 5310