“Except as otherwise expressly provided in this subsection, all of the provisions and presumptions set forth in Section 4 of this Directive shall apply to the prosecutor’s determination whether to request the court to issue a complaint-warrant following the return of a direct indictment. Because the defendant in a direct-indictment case will not have been arrested for this offense and therefore will not have been fingerprinted by means of the Live Scan system, it may not be possible to run the automated pretrial risk-assessment software to inform the complaint-warrant versus complaint-summons determination.
When practicable, a prosecutor should ask the judge before whom a direct indictment is returned to order that the defendant be fingerprinted by Live Scan prior to the court making the complaint-warrant versus complaint-summons determination so that this decision can be informed by the automated pretrial risk-assessment process. If it is not feasible to have the defendant fingerprinted through the Live Scan system before the decision must be made whether to issue a complaint-summon s or complaint-warrant, the prosecutor in making a recommendation to the judge.
Before whom the indictment is returned shall apply the provisions/presumptions set forth in Section 4 that do not depend upon the results of the automated pretrial risk assessment. See note 8; see also subsection 4.2.6 (discussing the authority to seek a superseding complaint-warrant based on new information bearing on pretrial release risks). In addition, the prosecutor shall when feasible ascertain the defendant’s criminal history by making an NCIC/CCH or Interstate Identification Index query that does not require fingerprint verification.”
The failure of these guidelines to provide an example when it would be “impracticable” or “not feasible” is most likely designed to once again ensure the prosecutors can apply their subjective discretion when the more objective and fairer automated system do not suit their desires. It is difficult to imagine an example of a situation when it would not be feasible to simply ask the judge to whom an indictment is returned to order that a defendant submit to the live scan fingerprinting.
