Following the Evidence, Not an Individual
By: Anna-Sigga Nicolazzi
True Crime shows (like Making a Murderer) can create the impression that law enforcement targets individuals. While this makes for compelling TV, in my experience as a homicide prosecutor, it seldom represents reality. In actuality, it is the evidence that leads the prosecution to a person, and not the reverse.
The Investigative Stage
Let’s start with some of the bare-bones basics. A homicide occurs. We all know that the police are then called, and their investigation begins. What many people don’t realize is that this is also when a homicide prosecutor is notified and becomes involved in the case. I look at a prosecutor’s role during the investigative stage as more of a coach at the sidelines. We are there to give input, consult, and offer legal advice, informed by our legal understanding of the considerations involved in a prosecution. We take an active role in things like the drafting of search warrants and reviewing identification procedures. We often follow up on statements taken by police with our own recorded statements from potential witnesses and suspects. We conference with police to decide when and if the evidence points to an arrestable offense. In many jurisdictions, including New York City, it is the prosecutor who determines if a suspect should be charged with the homicide, and if so, what the particular charges should be. When prosecutors file charges, their involvement intensifies, and the bulk of their work begins, including a range of proceedings to determine if probable cause was established and the case can proceed to trial.
No Stone Unturned
As a case moves forward, the investigation is often ongoing. Prosecutors review all available records to prepare their case for trial. At the same time, they may also conduct additional investigation. It is essential for the prosecutor to follow all paths and leave no stone unturned. I look at this in two ways: 1) there is no such thing as too much evidence — you want to gather every single piece you can find, and 2) after turning over every possible stone, the answer of “who did it” should not change, meaning if you are charging the right person and the evidence is on solid footing, , no stone should lead you away from that conclusion. If it does, then the prosecutor must figure out ‘why’ and either additional evidence reconciles the questions and leads back to the same result OR if it doesn’t, the prosecution must step back, reanalyze, and decide if the prosecution is sound. If not, the case must be dismissed. This happens rarely, but prosecutors must act when it does. Sometimes the dismissal is temporary while the case is evaluated further, and sometimes that decision not to prosecute is final.
Prosecuting the Crime
Contrary to what you see on TrueCrime TV, I don’t look at prosecutions as all about the bad guy. I see it as all about the crime, the victim, and following the road to justice wherever it leads. At every stage of the litigation process, the prosecutor’s role is to pursue justice and seek the truth. When credible evidence proves to prosecutors that a homicide was committed and that a particular person or persons committed it, we charge them and take them to trial. When we end up in the courtroom, the crime and the victim motivate us to take action, not the person who sits in the defendant’s chair. As prosecutors, we are focused on the evidence and what it proves. When I am at trial, I am prosecuting the commission of a crime based on the evidence, not the person him/herself. The reason someone sits in the defendant’s chair is simply that the evidence led us to that person; it is not about the “who,” it’s about the “what” — what they did and the evidence we have that proves it. While it is true that I do not want that person to remain at liberty, and I do want that person held accountable, it is always the crime and the evidence that motivate me, and not the individual defendant. This is a crucial distinction in modern True Crime stories vs. real life.
Getting It Right
Consider the term prosecutors use in the courtroom when referring to the accused. We always refer to him or her as “the defendant.” I once debated the validity of that terminology at trial with a defense attorney whom I very much respect. His perspective was that referring to his client as “the defendant” was dehumanizing. My response went back to the fact that it can never be personal. My job is to present evidence against the person sitting in that chair. To me, they are strictly “the defendant.” For me, it isn’t the person I concern myself with. I concern myself with presenting credible evidence that the crime was committed and that the person in that chair is the person who committed it, and that is the role of a homicide prosecutor in a trial. Now, this doesn’t mean prosecutors are callous or don’t recognize the defendant’s humanity and the implications of sitting in the defendant’s chair. Of course, we do, which is why it’s absolutely imperative for both sides that we get it right. Let me be clear; a homicide prosecutor never wants the wrong person convicted. That is nothing short of a travesty. It doesn’t aid society or the victim in any way, and it leaves the actual culprit still on the street, with the opportunity to commit more crime. We can’t lessen a family member’s pain. We can’t bring back their loved ones. What we can do is give our all to hold the appropriate person responsible. Getting justice for the victim, and on a larger scale for society as a whole, is a prosecutor’s only objective.
What sensationalized TV shows do get right is the extreme gravity of a homicide case. A homicide prosecutor acts as the voice of victims no longer on earth to speak for themselves. As prosecutors, we are charged with seeking justice. We are motivated by the victims of these crimes, but we must always be guided by the principles of justice. We work for the state, the government, the People as a whole, and while we want justice for the victim, the defendant deserves to be convicted by evidence that is credible and proves their guilt beyond any reasonable doubt. Only then is justice served.
Anna-Sigga Nicolazzi is a seasoned NYC homicide prosecutor with over two decades of experience as a prosecutor, Bureau Chief, and Chief of Trials with the Brooklyn District Attorney’s Office. She is also the founder of Forseti Media, co-executive producer and host of the TV series, True Conviction, and creator and co-host of the true-crime podcast, Anatomy of Murder. With a passion for victim advocacy, Anna-Sigga brings attention to criminal law and the varying paths to justice involved.