Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt. ^[1]

• There is no statutory standard to be used by the District Attorney for filing charges against a suspect arrested by the Police Department. However, the San Francisco District Attorney"s Office does operate under charging standards established by the California District Attorney"s Association. According to the District Attorney"s Office, the DA"s interpretation of these standards is equivalent to the provisions contained in Penal Code Section 1096, which states that the guilt of a suspect must be proven beyond a reasonable doubt.

• Although PC Section 1096 is intended to be used as a jury instruction when a criminal trial begins, in San Francisco, the DA applies this standard much earlier in the criminal justice process. As such, at the point at which formal charges are made against the suspect, the guilt of the suspect must be proven to the DA beyond a reasonable doubt.

• As a result, prosecutable cases are possibly being discharged by the DA because they do not meet this high standard. Other California District Attorney"s Offices apply a less rigorous standard in making the determination whether or not to file charges. As such, as a policy decision, the District Attorney may wish to consider establishing a more flexible policy for accepting cases for prosecution.

California Penal Code Standards for Arrests and Prosecution

California law establishes standards which must be met when making an arrest. Section 836 of Title 3, Chapter 5 ("Making of Arrest") of the California Penal Code (PC) states that a peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

As defined by Black"s Law Dictionary, reasonable or probable cause is the state of facts which would lead a reasonable person to believe and suspect that the person sought is guilty of a crime. In other words, there must be more evidence for than against the prospect that the suspect has committed a crime, yet reserving some possibility for doubt. Case law pursuant to PC Section 836 further states that probable cause does not require evidence to convict but only to show that the person should stand trial.

In San Francisco, once a person has been arrested for a felony, it is the Police Inspector"s responsibility to present the case against that suspect for review by a District Attorney. As described in the introduction to Section 1, this process, which is called a rebooking, involves corroborating the information contained in the arresting Police Officer"s incident report through evidence analysis and interviews with victims, suspects, witnesses and the arresting Police Officer. The Inspector then presents the case to the District Attorney, who must decide what formal charges, if any, to file against the suspect for prosecution. If the DA decides to press charges against the suspect, the suspect is then arraigned and a preliminary hearing is held in Municipal Court. At the preliminary hearing, a judge determines whether there is sufficient evidence for the case to go to trial.

While the Penal Code does establish a standard for making an arrest, it does not establish a standard which must be met by the District Attorney in determining whether or not to press charges against the suspect. Nevertheless, case law pursuant to PC Title 3, Chapter 7, Section 860 (Examination of Case and Discharge of Defendant) states that the evidence produced at a preliminary hearing need not establish guilt beyond a reasonable doubt, but is sufficient if it establishes reasonable and probable cause. Thus, even after the DA has made the decision to file charges against the arrested suspect, State law requires that only the probable cause standard need be met in order to move forward to trial.

The Reasonable Doubt Standard

Although there is no statutory standard for filing charges, the San Francisco District Attorney has made a policy decision to operate under the California District Attorney"s Association"s charging standards. According to the DA"s Office, the DA"s interpretation of these standards is equivalent to the provisions contained in Penal Code Title 7, Chapter 2 ("The Trial"), Section 1096, which states that the guilt of a defendant in a criminal trial must be established to a moral certainty and beyond a reasonable doubt. This standard represents a much higher standard than probable cause. Although this standard is intended to be used as jury instruction, the DA in San Francisco applies this standard much earlier in the criminal justice process, e.g., when deciding whether or not to file formal charges against the suspect. In other words, based on this standard, the San Francisco DA"s Office must be convinced "beyond a reasonable doubt" within 48 hours of the suspect"s arrest (the time limit for filing formal charges against the suspect), that the suspect is guilty of the crime.

According to staff from the District Attorney"s Offices in Alameda and San Mateo Counties, the charging standards established by the California District Attorney"s Association and a second publication, the Uniform Crime Charging Manual, are generally interpreted to mean that, at the point at which the DA files charges, the DA must personally believe in the guilt of the suspect and that there is no serious impediment to prevent the DA from going forward with prosecution. These charging standards do not specifically state that guilt must be proven beyond a reasonable doubt at the time that charges are filed. However, staff from the San Francisco DA"s Office interpret these standards differently to mean that the District Attorney must personally believe in the guilt of the suspect beyond a reasonable doubt in order to file charges against that suspect.

Based on conversations with staff from the Public Defender"s and other County Prosecutor Offices, although meeting the reasonable doubt standard is necessary to convict a person, it is not necessary to meet this standard in order to place a person on trial. Using such a high standard in making the decision whether or not to file formal charges eliminates the possibility of gradually being able to build a case against a suspect. As such, the DA may not be prosecuting some cases that perhaps could be prosecuted if additional time were provided in order to expand the investigation, develop the case and collect additional evidence and information.

As a result, prosecutable cases are possibly being discharged by the DA because they do not meet this high standard of reasonable doubt. In addition, given that the Police Department is making arrests based on the probable cause standard, and the DA is prosecuting such cases based on a much higher standard, it is inevitable that conflicts should occur between the Police Department and the District Attorney as a result of the DA"s decision not to proceed further with a case.

Other Standards Used for Charging Cases

Based on our discussions with staff from the District Attorney"s Offices in other jurisdictions and the San Francisco Public Defender"s Offices, the reasonable doubt standard is not typically used by District Attorneys in other jurisdictions to file charges against a suspect, and some District Attorneys in other jurisdictions have adopted a less rigorous standard of proof which must be met before filing charges against a suspect. This standard of proof is the standard referred to as clear and convincing evidence. As defined by Black"s Law Dictionary, this phrase, in one of its variations, means:

In other words, this standard of proof is higher than the probable cause standard but lower than reasonable doubt standard.

The DA should give some consideration to establishing a more flexible policy for filing charges which would encourage Assistant DAs to review all the options before making a decision whether or not to file charges against a suspect. Thus, Assistant DAs could have the option of prosecuting a case that may not meet the reasonable doubt standard at the time charges are filed, but which, through further investigation and some due diligence, could meet that standard by the time the case goes to trial.

The costs associated with implementing this recommendation, if any, cannot be determined at this time. However, implementation of this recommendation could potentially result in an increase in the DA"s caseload and staffing requirements.

Conclusions

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt.

There is no statutory standard to be used by the District Attorney for filing charges against a suspect arrested by the Police Department. However, the San Francisco District Attorney"s Office does operate under charging standards established by the California District Attorney"s Association. According to the District Attorney"s Office, the DA"s interpretation of these standards is equivalent to the provisions contained in Penal Code Section 1096, which states that the guilt of a suspect must be proven beyond a reasonable doubt.

Although PC Section 1096 is intended to be used as a jury instruction when a criminal trial begins, in San Francisco, the DA applies this standard much earlier in the criminal justice process. As such, at the point at which formal charges are made against the suspect, the guilt of the suspect must be proven to the DA beyond a reasonable doubt.

As a result, prosecutable cases are possibly being discharged by the DA because they do not meet this high standard. Other California District Attorney"s Offices apply a less rigorous standard in making the determination whether or not to file charges. As such, as a policy decision, the District Attorney may wish to consider establishing a more flexible policy for accepting cases for prosecution.

Policy Option

Costs and Benefits

Establishing a more flexible policy for accepting cases for prosecution would enable Assistant DAs to review all the options before making a decision whether or not to file charges against a suspect. Thus, Assistant DAs could have the option of prosecuting a case that may not meet the reasonable doubt standard at the time charges are filed, but which, through further investigation and some due diligence, could meet that standard by the time the case goes to trial.

The costs associated with implementing this recommendation, if any, cannot be determined at this time. However, implementation of this recommendation could potentially result in an increase in the DA"s caseload and staffing requirements.

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Footnotes

1. "Peace officers; arrest under warrant; grounds for arrest without warrant", California Penal Code, Title 3, Chapter 5, Section 836, Note 231.

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