Questions to US lawtalkers

[Martinus]

Under US (federal) criminal procedure:

- Does the victim (or the family of the victim, in case of murder) have any say in the deal with the prosecutor?
- Can the victim (or the family of the victim) bring criminal charges against the defendant if the federal prosecutor refuses to prosecute or enters into a deal with the defendant?
- Are all plea deals/bargains subject to a judicial review or can a prosecutor make a deal with the accused/defendant without the consent of the court (effectively, never bringing the case before the court or dropping the case)?

[Eddie Teach]

Pretty sure the first two are no. I have heard of judges not abiding by plea agreements.

[grumbler]

I think that prosecutorial discretion allows a DA to never bring a case to court or drop charges, but I don't think the DA can actually come to any enforceable deal without the consent of the court.

Not a lawtalker, just a talker.

[Martinus]

So, in practice there is no recourse for a victim if no prosecutor wishes to bring the charges in relation to the crime he/she is a victim of?

Polish criminal procedure allows an "interested party" to challenge a decision of a prosecutor not to prosecute and if the decision is not overturned, the "interested party" can actually prosecute in a criminal court - in fact this was hailed as one of the most important changes when communism fell (it was meant to combat situations where prosecutors would refuse to prosecute people for politically-motivated crimes) and I thought this was more widespread in Western democracies. It has been used since then to prosecute people for hate crimes and the like.

[The Minsky Moment]

Under US (federal) criminal procedure:

- Does the victim (or the family of the victim, in case of murder) have any say in the deal with the prosecutor?
- Can the victim (or the family of the victim) bring criminal charges against the defendant if the federal prosecutor refuses to prosecute or enters into a deal with the defendant?
- Are all plea deals/bargains subject to a judicial review or can a prosecutor make a deal with the accused/defendant without the consent of the court (effectively, never bringing the case before the court or dropping the case)?

1.  Not really.  For more detail see http://www.justice.gov/usao/resources/crime-victims-rights-ombudsman/victims-rights-act

2. No.

3.  Yes.    Federal Rule of Criminal Procedure 11.

[The Minsky Moment]

Marti keep in mind you specified federal system.

The majority of federal prosecutions are for drugs or immigration offenses and likely do not have an identifiable victim.  After that the next big categories are:
+ fraud - here there often are victims that have lost money but they have civil recourse.
+ firearms - likely no identifiable victim more often or not.

Most violent crimes are prosecuted at the state level and different rules can apply.

[Martinus]

Oh, ok. I thought murder would be federal!

[Barrister]

Under US (federal) criminal procedure:

- Does the victim (or the family of the victim, in case of murder) have any say in the deal with the prosecutor?
- Can the victim (or the family of the victim) bring criminal charges against the defendant if the federal prosecutor refuses to prosecute or enters into a deal with the defendant?
- Are all plea deals/bargains subject to a judicial review or can a prosecutor make a deal with the accused/defendant without the consent of the court (effectively, never bringing the case before the court or dropping the case)?

Just because you didn't ask about the situation in Canada...

-we always try and keep the victim (or family of the victim) on board with what we are doing, but legally, no, they have no formal status in the courts
- you talk about plea deals or decisions not to prosecute as if they are the same, but the effects are quite different.

If there is a plea deal, then the accused is pleading guilty to a criminal (or other) offence.  The matter has to go before the court.  The law states that judges should follow whatever the plea deal being suggested, unless the sentence proposed is "demonstrably unfit".  So yes, the court does have the ability to reject the plea deal and impose a different sentence.

If a plea has been entered and sentence imposed however, then the entire matter is res judicata - the matter has been decided.  No one can go back and try to bring new charges relating to the same events.

If the prosecution decides not to bring charges however, then obviously the matter is not before the courts.  The court has absolutely no say or jurisdiction over which charges we, as prosecutors, do or do not bring.

However... there is where the victim or family could theoretically come in.  Any interested party can launch a private prosecution - where they individually bring criminal charges before the court.  That being said however, we as Crown prosecutors have the ability to take over private prosecutions, and we invariably do so - either to continue the prosecution ourselves, or to kill prosecutions that we see as having no merit.

[DontSayBanana]

Oh, ok. I thought murder would be federal!

Generally, felonies happen at the state level.  Federal laws usually kick in where the scope of the crime is too big to be contained within one state- treason, crimes affecting victims in multiple states, etc.

Also, it bears mentioning that not bringing charges isn't a plea deal.  On the other hand, as long as the statute of limitations hasn't run out, the next guy could always bring charges.  I think you're confusing not bringing charges with an immunity deal, which is subject to judicial approval.

Oh, and there are also a handful of crimes that have responses in both state and federal law, but those are covered by a dual sovereign rule- if the states decline to bring charges, it doesn't stop the feds from bringing their own or vice versa (a good example was the Michael Brown shooting- the DOJ was exploring whether to bring federal civil rights charges after the state didn't charge Darren Wilson).

[Admiral Yi]

The obvious lever of the victim's friends and family is raising a stink in the press.

[Razgovory]

Oh, ok. I thought murder would be federal!

Well it can be, but typically is state issue.  If for instance you kill someone on federal property I think it's tried by the federal courts.

[The Minsky Moment]

Federal criminal jurisdiction expands and has been expanding steadily over time.  At this point, a lot of murders could at least in theory fall within federal jurisdiction but the feds still tend to be selective about what kinds of cases they prosecute.

[Martinus]

Under US (federal) criminal procedure:

- Does the victim (or the family of the victim, in case of murder) have any say in the deal with the prosecutor?
- Can the victim (or the family of the victim) bring criminal charges against the defendant if the federal prosecutor refuses to prosecute or enters into a deal with the defendant?
- Are all plea deals/bargains subject to a judicial review or can a prosecutor make a deal with the accused/defendant without the consent of the court (effectively, never bringing the case before the court or dropping the case)?

Just because you didn't ask about the situation in Canada...

-we always try and keep the victim (or family of the victim) on board with what we are doing, but legally, no, they have no formal status in the courts
- you talk about plea deals or decisions not to prosecute as if they are the same, but the effects are quite different.

If there is a plea deal, then the accused is pleading guilty to a criminal (or other) offence.  The matter has to go before the court.  The law states that judges should follow whatever the plea deal being suggested, unless the sentence proposed is "demonstrably unfit".  So yes, the court does have the ability to reject the plea deal and impose a different sentence.

If a plea has been entered and sentence imposed however, then the entire matter is res judicata - the matter has been decided.  No one can go back and try to bring new charges relating to the same events.

If the prosecution decides not to bring charges however, then obviously the matter is not before the courts.  The court has absolutely no say or jurisdiction over which charges we, as prosecutors, do or do not bring.

However... there is where the victim or family could theoretically come in.  Any interested party can launch a private prosecution - where they individually bring criminal charges before the court.  That being said however, we as Crown prosecutors have the ability to take over private prosecutions, and we invariably do so - either to continue the prosecution ourselves, or to kill prosecutions that we see as having no merit.

Thanks. I understand the difference between the decision not to prosecute and a plea bargain but wanted to word my question in the broadest possible way.

[The Brain]

"katmai?"

[dps]

Even at the state level, generally, the victim doesn't have much recourse as far as criminal prosecution and sentencing goes.  Often, though, they may still have a civil case, and in civil cases, the burden of proof is less than in criminal cases.  The O. J. Simpson case is a good example there--the prosecution failed to prove the criminal case, but Nicole Simpson's parents were able to get a wrongful death judgment against him (though I'm not sure they ever actually go any of the damages that were awarded).

AFAIK, in every jurisdiction in the country, the court has to sign off on a plea bargain, and can reject the agreed on deal.  That's what happened in the Roman Polanski case--the prosecutor agreed to a deal that meant IIRC that Polanski wouldn't be sent to prison at all, and the judge said that was far too light for a rape case.