THE ANATOMY OF CRIMINAL CASE: PRE-FILING AND INVESTIGATION

Last month, I announced I would be writing a series in an effort to demystify the process of a criminal case and hopefully correct some of the current misconceptions I frequently observe. I am organizing the series in chronological order. Most people probably assume that means we start at the arrest, but in many cases, there is a very important period preceding the arrest or filing of charges, which we thus refer to as the pre-filing investigation.

There are many instances in which a person accused of a crime is taken into custody immediately. When this happens, the prosecutor has to make a decision to charge the person within a relatively short time period or release them from custody. However, there are also numerous instances in which an allegation simply begins a law enforcement investigation or, as you might have guessed, times when a person is arrested but charges are not filed and the person is released so that law enforcement can conduct further investigation before deciding whether to file charges.

Prior to a charging decision, which will be the subject of the next entry in this series, oftentimes significant investigation is done that can drastically influence the course and outcome of an offense. While there are times when you may not know that you are the target of an investigation, usually you have an idea because the police have alerted you, interviewed others or you simply know that someone has made an allegation about you to the police.

This time period can be critical for a number of reasons. The number one mistake people make during this time period is making statements to the police or others that make the situation worse. This is the first thing any criminal defense attorney will tell you when retained: from this day forward, you do not talk to anyone but me about the subject of this investigation. Police use numerous tactics to apply pressure to obtain incriminating statements from the targets of their investigations. Sometimes when these do not work, they will enlist non law enforcement to try to obtain statements like having the accuser call the accused seeking an apology for the conduct. Having an attorney gives you someone you can discuss the matter with in confidence, knowing that those communications are privileged.

Another critical consideration during this period is that evidence can be lost if it is not preserved. Businesses often retain surveillance video for only a few days before it is erased unless someone alerts them that preservation is necessary. Also, once people become aware that an event is subject to litigation, they will erase social media posts related to that event. Retaining a qualified criminal defense attorney as soon as possible will mean making sure that these things are identified and preserved.

This also ties in more generally with the advantage of getting a head start on the investigation and preparation of a potential defense in the event that you are charged with a crime. As in many other areas, there is a big first-mover advantage in investigation and the early bird often finds the worm. Law enforcement is already using their significant resources trying to put a case together against you. It is never too early to begin defending yourself.

Lastly, and this dovetails nicely into the next entry in this series, which will deal with the charging decision and pre-filing negotiation, both law enforcement and the prosecutor's office are often far more willing to talk to an accused person's attorney about the subject of an investigation than they are to communicate directly with the accused (besides, talking to law enforcement directly is a dangerous proposition as discussed above). This can allow for the correction of inaccuracies in the investigation, the presentation of exculpatory or mitigating evidence, etc…As we will discuss in the next entry, all of that can often mean obtaining a "no file" decision from the prosecutor's office or the filing of lesser charges.

Bottom line, the moment you become aware that you may be the target of an investigation is the moment you should begin working to obtain a qualified criminal defense attorney to advocate on your behalf.