Law expert weighs in on prospects for charges in Stewart case

It is the prosecutor's duty to prove that a person should be charged based on the evidence they present. They do not have to present evidence that could be favorable to the person facing charges. Unlike a trial, a defense attorney is not permitted to argue its case.

"I would suspect that the prosecutor in this situation is going to do everything within his power to make sure that this is a fair presentation of the evidence,'' Gary Kelder, a prosecutor from 1992-'98 and a law professor at Syracuse University, told MRN.

Kelder said that if Tantillo seeks a manslaughter charge in the case he could make it either for manslaughter in the second degree – a Class C felony in the state of New York, carrying a maximum sentence of 15 years – or for criminally negligent homicide, a Class E felony in New York with a maximum sentence of four years. To prove the more serious charge, the district attorney would have to prove the "conduct of the individual was reckless.''

Kelder said a prosecutor typically will present the evidence to a grand jury before determining what charges would be sought. A grand jury can indict an individual based on the evidence presented, leading directly to a trial. The grand jury also may dismiss the charges altogether or direct the prosecutor to file a lesser charge.