20

Inspired by the answer to a previous question I asked.

Let's say Alice assaults Bob, and Bob goes to the police. I gather from the answer to the linked question that what happens in principle is that the police would investigate, and the local prosecutor would file charges against Alice.

But suppose Alice is a billionaire and she bribes the local prosecutor to not prosecute. What happens next? Presumably, if Bob can show the prosecutor was bribed he can make a new accusation against the prosecutor, but what if the bribe was clandestine? Presumably the prosecutor would just fend off Bob saying something about limited resources, lack of evidence (even when the evidence is clear), etc.

This seems to say that Bob has no real recourse unless public pressure changes the prosecutor's mind (!?). Is that really the case? If so, it seems quite incredible—criminal accusations are for serious crimes, and it's surprising that the decision whether or not to press charges can rest on one, possibly biased, potentially influenced person.

If the country matters, assume the USA.

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  • 9
    Country matters pretty much. In countries where private prosecution is available, Bob could prosecute Alice directly.
    – Greendrake
    Feb 5 at 7:26
  • 14
    You seem to be labouring under the misapprehension that a crime is committed against the victim. It isn’t, a crime is committed against society - the victim just got in the way. If someone has damaged you you can seek compensation in a civil suit.
    – Dale M
    Feb 5 at 8:45
  • 3
    In Germany there is a judical relief for the vicitims. They can bring an action to court (after an appeal to the chief prosecutor of the state) to force the prosecutor to prosecute.
    – K-HB
    Feb 5 at 9:12
  • 3
    @DaleM (In Geman general opinion:) A crime is not only committed against the society but also against the vicitim. So the vicitim has some place in the criminal process. The details are politics.
    – K-HB
    Feb 5 at 9:14
  • 1
    For once in a while, could we not hear about Alice and Bob? They are a busy pair, being involved in legal hassles, as well as financial ones, not to mention questions in physics forums involving the twins paradox, time dilation, etc. Maybe Xander and Yann, and if needed, their pal Zander could drop in. Feb 6 at 17:17
22

Bob could do any number of things to try to convince someone to prosecute Alice: call the prosecutor's boss, or the district attorney (or their equivalents in DOJ if it's a federal crime), or his elected representatives; he could also go to the media, or post on social networks...

But if none of that works, the article is right:

Prosecutors can't be legally compelled to prosecute someone

Crime victims don't have any rights to control whether a prosecution happens—the government is the plaintiff. A prosecutor can even file charges over a victim's objections. Federal law and some states have Crime Victims' Rights Acts, which do grant some rights. But note the particularly relevant exception in that law:

Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.

This is also a separation of powers issue: the executive branch has the exclusive right to determine how the laws are executed. Neither the legislature nor the judicial branches can compel the executive to prosecute someone.

Note that none of this affects Bob's civil remedies: he can still sue Alice for damages. But that won't result in her ending up in prison.

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  • 3
    In the netherlands in such a case the victim can actually create a case against the government if they feel they are being done wrong by no prosecution. In which case the controlling part of the trias politica does the job of controlling the executive branch. Isn't there a similar thing that can be done in the US?
    – paul23
    Feb 6 at 1:16
  • @paul23 For the most part, no, with some limited exceptions. You certainly couldn't sue the government for damages relating to their failure to prosecute someone, much as you can't sue police for failing to protect you. Regarding decisions about prosecutions, prosecutors also have absolute immunity from suit
    – Ryan M
    Feb 6 at 4:09
  • I'm not talking about sueing a personal entity. But suing the government as a whole for failure to follow their own rules. Well this might be a different question but I wonder what's the controlling regime in the US then, to whom is the government responsible, and how can one dare government if you feel generally being wronged by the government? It happens constantly in the netherlands regarding persecution, or overzealous tax enforces, or privacy violations of the government. Happens so much much that I wonder what people do in the US instead?
    – paul23
    Feb 6 at 4:35
  • Just for clarification... prosecutors (officers of the court) are considered part of the executive branch?
    – adam.baker
    Feb 6 at 7:57
  • 1
    @adam.baker That's correct. They're officers of the court in the same sense that all lawyers are, but in the United States, prosecutors do not work for the court system.
    – Ryan M
    Feb 6 at 8:01
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The other answers are all generally correct. I'll add just a few additional points.

But suppose Alice is a billionaire and she bribes the local prosecutor to not prosecute. What happens next? Presumably, if Bob can show the prosecutor was bribed he can make a new accusation against the prosecutor, but what if the bribe was clandestine? Presumably the prosecutor would just fend off Bob saying something about limited resources, lack of evidence (even when the evidence is clear), etc.

This seems to say that Bob has no real recourse unless public pressure changes the prosecutor's mind (!?). Is that really the case? If so, it seems quite incredible—criminal accusations are for serious crimes, and it's surprising that the decision whether or not to press charges can rest on one, possibly biased, potentially influenced person.

There is an implication here that prosecutors will only decline to prosecute for improper purposes such as bribery. This is a misperception.

U.S. prosecutors routinely decline to prosecute cases presented to them when there is probable cause that a crime was committed and there is a reasonable chance that a conviction could be obtained beyond a reasonable doubt for reasons that are not improper. Some of the common circumstances include the following:

  • Prosecutors routinely decline to prosecute white collar crime cases when the victims have the ability to seek redress in a civil lawsuit instead. Usually, these cases are prosecuted criminally when the victims are especially vulnerable and couldn't obtain an attorney themselves, when the harm would be uneconomical to pursue in civil lawsuits since each loss is modest, when the number of victims are numerous, or when the crime has such notoriety that letting it be handled in a civil lawsuits would set a bad example.

  • Prosecutors rarely prosecute statutory rape cases unless the alleged victim feels aggrieved, even if a third-party complains and the evidence of the crime is overwhelming.

  • Prosecutors often decline to prosecute when the offender apologies and pro-actively seeks to compensate the victim for the harm done.

  • Prosecutors often decline to prosecute out of the belief that a key witness or evidence may be difficult to obtain or present, for example, when a 4th Amendment improper seizure of evidence issue is a close one, but if the evidence comes in, the case will be open and shut.

  • Prosecutors often decline to prosecute because a larger grand strategy is in place to deal with a pattern of criminal conduct (e.g. trying to shut down an illegal chop shop, or trying to shut down a gang or drug dealing operation) when doing so based upon a citizen complaint would interrupt the larger strategy.

  • Prosecutors often decline to prosecute when the primary harm caused by the crime (often public order offenses) is resolved by an arrest and removing the defendant from the situation to defuse it, and the prosecutor determines that no further public benefit would be provided by utilizing the court process to prosecute the crime that formed a valid basis for an arrest.

  • Prosecutors often decline to prosecute on charges that are technically available but would result in an unduly harsh punishment (e.g. declining to prosecute high school students sexting each other for child pornography offenses).

  • Prosecutors often decline to prosecute if the crime victim was a victim of a crime while "up to no good" or where the circumstances of the crime caused the perpetrator to be punished in some other fashion (e.g. a burglary suspect who was shot and seriously injured when a homeowner fired upon him in self-defense).

  • Prosecutors often decline to prosecute law enforcement or public safety officials who were either acting in good faith or for understandable reasons, who do not have a history of being "bad actors" (and sometimes even if they do, in order to maintain support from people who are usually co-workers upon whom their office relies).

  • Historically, prosecutors have declined to prosecute many acts which clearly legally constituted sex offenses for a variety of reasons, except in cases of the violent use of force on the victim by strangers in situations where no sexual activity of a consensual basis by the victims would have been foreseeable. This practice is gradually changing, but does not reflect bribery or other undue influence or conflict of interest.

  • Prosecutors often decline to prosecute certain crimes, such as adultery and certain kinds of criminal defamation, even when they are on the books and have not been declared unconstitutional.

  • Prosecutors routinely decline to prosecute property crimes (such as theft, vandalism and fraud) involving related parties, calling these disputes "civil matters".

  • Prosecutors often decline to prosecute when the crime, while not legally justifiable was motivated by an understandable good faith reason (e.g. the brother of a rape victim beats up his sister's alleged rapist after ambushing him in a dark alley).

  • Prosecutors often decline to prosecute stale offenses even when the statute of limitations has not run and there is enough evidence to convict (e.g. two year old drug possession charge documents with video and a carefully preserved and lab tested sample of the substance).

  • Prosecutors often decline to prosecute minor crimes on the grounds that they are not a high priority and their office has limited resources (e.g. minor vandalism or trespassing cases, even if well-documented).

There are also a couple of exceptions to the general rule of absolute prosecutorial discretion:

  • A handful of jurisdictions, mostly in the eastern U.S., allow citizens to criminally prosecute minor crimes committed against them themselves without a prosecutor's involvement, if the prosecutor chooses not to intervene and take over the case. Massachusetts, for example, allows this for some crimes as do a number of Southern states. This is generally rarely used, but it exists in some places.

  • Many states allow a crime victim to petition a court to have a special prosecutor appointed in lieu of the prosecutor's office that would usually have jurisdiction over the crimes alleged. Usually this requires a showing that (1) there is probable cause to believe a crime was committed in the jurisdiction in question, and (2) there is some reason that the prosecutor's judgment is likely to be impaired. For example, a special prosecutor might be appointed by a judge when the case involved a prosecutor or member of the family of someone who works in the prosecutor's office, someone in the prosecutor's office represented the defendant as a client before working at the office, the defendant is a law enforcement officer or court official with whom the prosecutor's office needs to work, there are allegations of impropriety of some other kind shown in connection with the case. This happens very rarely, with the most typical cases being drunk driving and domestic violence cases against prosecutor's office lawyers.

This is rarely a mechanism for dealing with allegations of the local government level corruption. Instead, in those cases, one typically complains to state or federal officials and seeks to have those agencies investigate the corrupt agency or official criminally. Special prosecutors are sometimes appointed to investigate corruption at the state or federal level, however.

As recent opinion of the 5th Circuit Court Of Appeals recognizes the unfairness of this rule to the crime victim, while at the same time upholding the legal rule of prosecutorial discretion:

The allegations in this case are sickening. Priscilla Lefebure alleges that Barrett Boeker, her cousin’s husband, raped and sexually assaulted her on multiple occasions at his home on the grounds of the Louisiana state prison where he serves as an assistant warden. Lefebure further alleges that Samuel D’Aquilla, the district attorney, conspired with Boeker and others— including Boeker’s counsel, a relative of D’Aquilla’s—to prevent her from seeking justice for these crimes. It is undisputed that D’Aquilla declined to prosecute Boeker. And according to Lefebure, he did not even bother to seriously investigate him. In response, she filed this suit against D’Aquilla, as well as Boeker and others, on a variety of constitutional and statutory claims.

Under established precedent, however, we have no jurisdiction to reach her claims against D’Aquilla, because she has no standing under Article III of the Constitution to bring them. As the Supreme Court has instructed, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). The district court theorized that Linda R.S. does not apply here, because Lefebure complains not about the lack of prosecution, but about the lack of investigation. But we do not read Linda R.S. the same way. To the contrary, Linda R.S. makes clear that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Id. (emphasis added). . . .

Lefebure’s story is one that is shared by too many survivors who have been doubly victimized by the horrifying crime of sexual assault—first by their assailants, and then again by a criminal justice system that fails to enforce the laws on the books. See, e.g., Pierre v. Vannoy, 891 F.3d 224, 229 (5th Cir. 2018) (reversing district court for its “troubling” decision to release convicted child rapist without mentioning, let alone distinguishing, governing circuit precedent foreclosing release).

Moreover, Lefebure’s story is particularly appalling because her alleged perpetrator holds a position of significance in our criminal justice system as an assistant prison warden. We expect law enforcement officials to uphold the law, not to violate it—to protect the innocent, not to victimize them. “Nothing is more corrosive to public confidence in our criminal justice system than the perception that there are two different legal standards—one for the powerful, the popular, and the well-connected, and another for everyone else.” United States v. Taffaro, 919 F.3d 947, 949 (5th Cir. 2019) (Ho, J., concurring)(discussing lack of prison time for chief deputy sheriff in Jefferson Parish despite multiple criminal convictions).

It is no doubt cold comfort to Lefebure, then, that the legal principles we are forced to apply today present no barrier to bringing her own suit against her assailant—which she reportedly has already done. For surely she expected to have the support of her state’s elected and appointed prosecutors, investigators, and other officials in her pursuit of justice. If her account is correct, then the system failed her—badly.

But none of this changes the fact that our court has no jurisdiction to reach her claims against the district attorney, who for whatever reason declined to help her. We have no choice but to reverse and remand with instructions to dismiss the complaint for lack of subject matter jurisdiction as to D’Aquilla.

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Prosecutorial discretion is a thing, however, Bob still has some recourses. In the U.S. the Prosectors are typically elected at the state and local level, and where they are not, they are appointed by elected officials. So if Bob is civic minded, he might spend some time campaigning for political rivals (either primary challengers OR general election challengers) and try and get some focus on the fact that cases are being dropped. Bob should also do something akin to opposition research to see if Alice and the Prosecution have any close ties or associations that would bias the Prosection.

Where corruption is suspected, Prosecutors may be subject to a special prosecutor/investigator's own scrutiny. These people are brought in as neutral parties to investigate the people who may have political ties that may be seen as bias favoring the prosecutor that make a regular investigation difficult. Additionally, while the prosector's office is part of the responsive government's executive branch, that doesn't mean their budget is controlled by the executive. Rather the power of the purse in the U.S. typically lies with the legislature and the lower house at that (Except in Nebraska and most county level governments or lower, which tend to have only one "house" but even then, it does have Power of the Purse). As such, all executive agencies will be brought before appropriate comittees to address concerns (as well as legislature members to make fiery speeches about the way a department is being run) with the ultimate threat of withholding budgets from executive departments acting in bad faith.

Furthermore, Bob may not be able to criminally testify against Alice, but he can file Civil Charges for damages occured in the assault, or seek injunctive relief against Alice (aka a restraining order) compelling Alice to not approach a certain distance to Bob by court order. Breaking this court order can net Alice a "Contempt of Court Charge" which is a criminal charge and a special one at that. Contempt of Courts are crimes where the judge who finds contempt is both the Judge, the Prosector, the defendant, and the Jury all in one go... essentially, when the Judge holds a person in contempt, they are automatically saying "You're Guilty" and while Alice can appeal, it still has to go through the process of that nightmare. Essentially, Alice has to bribe more than the prosecutor to make the determined Bob go away.

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  • 1
    Expanding on your first paragraph, Bob could make the prosecutor's actions public. Traditionally this would have been letters to the newspaper, but now he can tweet, post to blogs, etc. The embarassment he suffers over refusing to prosecute a worthy complaint could damage him professionally and politically. And it might trigger investigation as in your second paragraph.
    – Barmar
    Feb 5 at 17:22
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In many countries, an individual has the right to raise a private prosecution if the public prosecutor decides not to pursue a case.

This is generally expensive, as with all things legal. The reason for public prosecutors after all is to prevent justice being limited to the rich and denied to the poor. So there's a pretty high barrier to this - and since the usual reason for the public prosecutor to refuse to prosecute is because they don't believe the case is reasonably winnable, they rarely succeed.

Still, it does happen. In 1995 in the UK, two women successfully won a private rape prosecution after the CPS refused to go ahead.

5

The question reads:

I gather from the answer to the linked question that what happens in principle is that the police would investigate, and the local prosecutor would file charges against Alice.

This is not correct even in principle. At least in the , the local prosecutor might or might not file charges.

Reasons why a case might not be prosecuted

There are many reasons why a prosecutor might not file charges, even is s/he believed that the accused did the crime, quite aside from any outright bribery.

Perhaps the most important and most common is that the prosecutor thinks that a trial will not result in a conviction. No prosecutor wants to spend time, effort, and resources only to have a jury acquit. Also, win percentages are an important way that prosecutors are evaluated, either by their bosses (for assistants) or the voters.

Similarly, if the crime is fairly minor, the prosecutor may be unwilling to spend limited resources on the case, especial;y if a jury trial seems likely.

If the prosecutor feels that a conviction would work an injustice, s/he may choose not to proceed.

If a prosecutor thinks that pursuing the case will be politically unpopular, s/he may well choose not to proceed. Local DAs at the state level are elected officials in most states, and while Federal prosecutors (US Attorneys and their assistants) are appointed, they are often very alive to political forces -- the post of US Attorney is often a stepping stone to elected office. (For example former NJ Governor Christie was a US Attorney before being elected Governor.)

Options for a victim or interested party

One can, of course, request the local prosecutor to proceed with a case. This can be backed with a campaign to draw public attention, and hence political influence, to the case. The prosecutor can always decided to proceed with a case (unless a statute of limitations has expired).

In many US states (for example MA) the state Attorney General has the option to take over any particular case from the local DA, and have his or her office handle it instead. One could ask the AG to exercise this power.

In a Federal case, the US Attorney General could direct a US Attorney's office to proceed with a case, although that is quite unusual. Again public/political pressure mi8tght well matter.

If the prosecutor had actually accepted a bribe, that would be a crime. If this could be proved, the prosecutor should be removed from office and quite probably convicted. In such a case the new prosecutor would be very likely to review the case with a very different eye.

As other answers have discussed, Bob might be able to file a civil suit.

If the actions Alice is accused of constitute both a state and a federal crime, Bob could ask the other jurisdiction to take the case.

History

When jury trials were first introduced in England, prosecutions were normally started by a private person, through an action known as Appeal (This is different than the modern use of "appeal" to mean bringing a case to a higher court.) But the King and the central authorities under the king found that often crimes were not prosecuted which they wanted addressed, particularly when the accused was a wealthy or powerful person, or the potential accuser was weak or poor.

So the Grand jury was created. This was originally not a protection against the state, but an instrument of the state (the crown) to help determine who committed crimes and to get prosecution started against them, even when no one would file an Appeal.

Public prosecution and private prosecution by Appeal coexisted in England until 1819 when the Appeal of Murder etc Act, 1819 was passed, which eliminated private appeal of crime. This was a direct result of the case of Ashford v Thornton, the previous year. In that case the accused, Thornton (who had previously been acquitted on a public prosecution) elected to defend himself by "wager of battle" -- that is a trial by combat -- and was held to be entitled to do so.

See The Law of the Land by Charles Rembar for coverage of the above history, written for the non-lawyer.

David Friedman, in chapter fifteen of Legal Systems Very Different From Ours discusses in detail 18th Century England's then-current system of private prosecution, largely from an economic point of view, pointing out its advantages and disadvantages, and some of the side effects.

In thew US, private prosecution has never been much favored, and even where it is legally possible, it has remained rare. .

1
  • Didn't know that history. Thanks.
    – ohwilleke
    Feb 8 at 19:46
5

In this varies significantly by state, but I am at least familiar with provisions in law for judicial review of refusals to file criminal charges.

Pennsylvania Rule 506 allows anyone to file a private criminal complaint, and requires a state attorney to timely either approve it for prosecution or to explain the reason for not approving it. If it is not approved Rule 506(B) allows the complainant to request judicial review of the disapproval.

The standard for review of a prosecutor's refusal to approve criminal charges is abuse of discretion. There's a good amount of case law regarding what constitutes "abuse of discretion" by a prosecutor in declining to prosecute a criminal complaint. From In re Wilson, 879 A.2d 199 (Pa. Super. 2005):

¶31 ... The private criminal complainant has the burden to prove the district attorney abused his discretion, and that burden is a heavy one. In the Rule 506 petition for review, the private criminal complainant must demonstrate the district attorney’s decision amounted to bad faith, fraud or unconstitutionality. The complainant must do more than merely assert the district attorney’s decision is flawed in these regards. The complainant must show the facts of the case lead only to the conclusion that the district attorney’s decision was patently discriminatory, arbitrary or pretextual, and therefore, not in the public interest.

¶18 [T]here is no simple formula for the trial court to determine what constitutes an abuse of prosecutorial discretion. ... Everything will depend on the particular facts of the case and the district attorney's articulated reasons for acting, or failing to act, in the particular circumstances. For example, a court might find an abuse of discretion in a district attorney's pattern of discriminatory prosecution, or in retaliatory prosecutions based on personal or other impermissible motives. Similarly, a district attorney might be found to have abused his discretion for his blanket refusal to prosecute for violations of a particular statute or for refusing to prosecute solely because the accused is a public official.

[8] Other examples of an abuse of discretion in these kinds of cases include circumstances involving the deliberate use of race, religion, gender, or other suspect classifications, or biased generalized personal beliefs, such as a belief that a man could never be the victim of domestic violence. Additionally, an abuse of discretion might be found where the complainant can demonstrate a district attorney's pattern or practice of refusing to prosecute certain individuals or groups because of favoritism or cronyism. This list is not meant to be exhaustive, but only to give some indication of what might constitute an abuse of discretion in policy-declination cases

3

Although you tagged the question with "united states", from the way you formulated it you seem interested in other jurisdictions as well.

I am not a lawyer but I know that in the Netherlands the victim or anyone with an interest in the case can start a so-called article 12 procedure where a judge will decide whether or not the prosecutor is obligated to start a case against a defendant.

3

The law gives limited power for private action

That is to say, Bob can make himself his own Attorney General, however, the force of Bob's swing is limited.

This is called a civil action aka a lawsuit.

The classic example is OJ Simpson. Murder charges were filed, but prosecution was unable to prove their case beyond a reasonable doubt. However, the families of OJ's victims pressed a civil case for wrongful death (a civil cause-for-action, not the same as murder), and collected a large money judgment, because they showed that OJ Simpson was more than 51% likely to be the cause of their anguish.

Civil juries tend to award compensation vaguely in proportion to the loser's means, and did so with a vengeance in OJ's case, bankrupting OJ.

Bankruptcy allows clearing of many debts, but depending on jurisdiction, debts for deliberate and otherwise criminal acts aren't one of them. In fact, OJ did a long prison stint for something completely different, and emerged still deep in debt to the families.

Civil court has a lower standard of proof

In civil court, the standard of evidence is "51% more likely than not". This makes it a great deal easier to get an accusation across the finish line. In cases thin on hard evidence, it bottom-lines to who the jury believes.

No jail... but, no jeopardy. Unless...

A civil action can compel action (pay money; return possessions; vacate apartment) or restrain action (stop making false claims; stop holding parties past 10pm).

Because the defendant is not in jeopardy for life and limb, the rules on double jeopardy do not apply. A civil suit does not prevent a criminal action, nor vice versa.

(a different rule prevents you from filing multiple lawsuits on the same matter).

However, there are crossover effects. Things entered into evidence at a criminal trial are generally public unless sealed, and can easily be placed into evidence at the civil trial. This is in fact more useful than new evidence, since that was was already examined and cross-examined at that other trial. Not least because the criminal prosecutors have better fact-finding resources at their disposal than civil plaintiffs do. The OJ criminal prosectors were well aware that even if they lost, the evidence they collected would be a treasure trove for the civil suit.

Also, evidence gathered in a civil suit can be used to build a criminal case. Civil judges who see evidence of a crime have been known to "refer the case" to a district attorney for criminal prosecution. D.A.'s generally take such referrals very seriously. In theory they could decline, but it would create an awkward situation for the D.A., both in the eyes of the media and the opinion of the judges they'll need to work alongside through their career.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Feb 7 at 4:53
1

Bob can request a review of the decision by the Crown Prosecution Service (CPS) not to bring proceedings (ie lay charges) against Alice under the Victims Right to Review scheme introduced following the Court of Appeal case R v Killick.

The Review can be done at two levels:

firstly, a local resolution stage where reviews are conducted by a new prosecutor at the appropriate local CPS office ... where the original decision was made;

secondly, (if the original decision not to prosecute is upheld), if eligible, a review independent from the local CPS office where the original decision was made, conducted by the ARU [Appeals and Review Unit].

There is no guarantee that the original decision will be overturned but either one of these independent reviewers could do so if they are satisfied that there is enough evidence against Alice to provide a "realistic prospect of conviction" (unless her corrupting influence has penetrated to the extent favoured by Hollywood and/or conspiracy theorists).

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