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The Public Prosecutor and Split-Second Decisions

Per the electronic NYT of July 11, 2016:

““Here’s the challenge,” … a former federal prosecutor from Brooklyn said. “You have a split-second decision by a police officer on the street in the exercise of his official duties. It’s extremely difficult to say what is and isn’t a willful violation of someone’s civil rights.””

Without commenting on whether criminal charges should be brought by the public prosecutor, I advise that further consideration be given to assessment and interpretation of split-second decisions. Daily, many individuals make oodles of split-second decisions (e.g., while driving a car to work). Granted that deciding whether and if so, how much, physical force to apply in a given situation is not like writing a legal brief or research paper packed with statistical analyses and reasoned arguments, it is not a decision that cannot be understood, interpreted, and assessed by public prosecutors and other law enforcement agents, as well as lay people (e.g., prospective jurors).

Perhaps, a useful analogy is consideration of the criminal charge of death by auto (aka vehicular homicide). See the June 14, 2004 N.J. judiciary jury charges for this crime without the attendant circumstance of drunk driving. Risk assessment is key: If the defendant were reckless (i.e., consciously embarking on a course of conduct that created an unjustifiable risk that was consciously disregarded by the defendant), he/she could be deemed to have had the guilty mind / culpability satisfying the charge of vehicular homicide (e.g., changing lanes without inspecting the flow of traffic).

Understanding the attendant circumstances is a necessary threshold requirement. This is where policing is often materially different from soldiering: Generally, the soldier’s risk assessment rests on qualitatively different assumptions and estimates than the civilian police officer (though conditions of riot may merge these assumptions and estimates). Public prosecutors get paid to second-guess, and the senior executives within the public prosecutor’s office get paid even more, especially to make difficult assessments. Occasionally, the public prosecutor does not enjoy the luxury of making decisions in a social and political environment where all reasonable (assistant) prosecutors would agree on his/ her decision. Commonly, consensus would be obtained, and many would still be dissatisfied notwithstanding reliance on the reasonableness standard, which should have led to convergence of opinion and not its divergence.

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