By: Frances Prizzia | Criminal & DUI Defense

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 if and 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 more investigation.

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.

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