In the last entry of this series, we discussed the first step in a criminal
prosecution, the pre-filing investigation. This is the period between
law enforcement discovering that a crime may have been committed and submitting
the case to the prosecutor’s office for filing. At this point, the
next step is for the prosecutor’s office to decide
how to file the case.
This can be an absolutely critical point in a prosecution because once
a charging decision has been made, it is significantly more difficult
to change or reverse that decision after the fact than it can be to influence
that decision ahead of time. In other words, it becomes more difficult
to undo what is already done rather than try to make sure a damaging charging
decision is not made in the first place.
Few people who are not intimately familiar with the criminal justice system
fully understand just how important a charging decision can be to the
ultimate disposition of a case. For example:
- Does a “wobbler” (a charge that can be filed as either a misdemeanor
or a felony) get filed as a felony, significantly increasing the exposure
to the defendant and thus increasing the perception of the “worth”
of the case?
- Is a borderline drug case filed as a sales case or a simple possession case?
- Are lesser included or lesser related charges filed? For instance, if a
case is recommended for filing as an attempted murder, if the prosecutor
decides not to file the lesser related charge of aggravated assault, neither
a judge nor jury can change the charge going forward. However, if the
prosecutor has concerns about her ability to prove the greater charge,
they may file the aggravated assault both as a signal to the defense that
the case may be capable of settling and as a compromise option for a jury
if the government fails to prove the greater charge.
Obviously, aside from these nuanced examples of
how a case is filed, a prosecutor also has to make a decision as to
whether or not to file a case. Many people are unaware that the police do not
decide on charges, but simply make recommendations to the prosecutor as
to what charges should be filed and that frequently a prosecutor will
look at the case and decide that it is not strong enough to file or requires
As noted last month, obtaining qualified defense counsel at the earliest
moment you become aware you are the target of an investigation is critical
because prosecutor’s offices, for the most part, will not communicate
with an unrepresented suspect. Without a lawyer, the prosecutor is likely
to receive a very pro-prosecution version of the investigation from law
enforcement officials who, after all, are advocating at this point for
charges to be filed. Having counsel allows a suspect to communicate to
the prosecutor weaknesses in the evidence or even exculpatory evidence
unknown to the prosecutor that may result in a less serious filing or
no filing at all.
Next month, we will look at what does happen when a case is filed by looking
at the charging documents that initiate and support a prosecution and
the arraignment process.