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How Criminal Charges Are Filed

Typically, a criminal case is started with a police arrest report. It is usually a good idea to contact a criminal defense attorney after you’ve been arrested. A prosecutor will then review the report and decide whether criminal charges should be filed, and which ones. Then, the case will proceed either to the grand jury, where the defendant may be indicted on the charges, or to a preliminary hearing, where a judge will determine whether there is enough evidence against the defendant for the case to proceed. The following is a more in-depth explanation of how the process works:

Arrest Reports and Criminal Charges

Once a person is arrested for a crime, the arrest report is sent to the prosecutor’s office, usually the District Attorney or the U.S. Attorney. The prosecutor’s job is to initiate criminal charges and then continue to prosecute the case until its completion. An arrest report generally will summarize the facts and circumstances surrounding a person’s arrest, and include information such as the date, time, and location where the crime occurred or where the person was apprehended. The report may also include the names and contact information of people who witnessed the crime, if there were any.

Upon receiving the report, a prosecutor may:

  • Determine that the defendant should be charged as either a felony or a misdemeanor, and file a criminal complaint with the court.
    • Determine that the defendant should face felony charges and present the case to the grand jury, who will then decide what charges should be filed or that no charges should be filed at all.
    • Determine that the person should not be charged, and that the case should not be prosecuted.

Prosecutors are able to file criminal charges for any crime for which the police may arrest a person. Alternatively, they may file charges either more or less severe than those for which the person was arrested. Whatever they do, the charges must be filed promptly.

When a defendant is in custody, laws entitling the defendant to a speedy trial usually require that a prosecutor formally charge the defendant within 72 hours of his arrest, if charges are in fact filed. Some states require that charges be filed even sooner, for example, California demands charges be filed within just 48 hours of arrest.  Charges are subject to change, however, and a prosecutor may not firmly decide on what charges to initiate until after a preliminary hearing, which could be held over a month after the defendant’s arrest.

How Does a Prosecutor Decide Whether to File Charges?

There are several factors which may influence a prosecutor’s decision to file charges aside from the facts contained within the police report regarding an incident.  In some cases, prosecutors may be influenced by their own political agendas. Some prosecutors are elected officials, and may therefore regard their position as a springboard to a higher office. Additionally, their decisions regarding criminal charges may be influenced by public opinion or an affiliation with a certain group. For example, charges may be filed in every shoplifting case, even the weak ones, in an effort to side with local store owners who want to make it known that shoplifters will indeed be prosecuted.

Also, some agencies have adopted fixed policies regarding certain crimes, usually in response to pressure from the community, and the policies may control a prosecutor’s decision as to what to charge in certain cases. For example, a prosecutor’s office may decide that all drug possession cases are charged and taken to trial, rather than plea bargained or dismissed.

Finally, some charging decisions may be influenced by “what justice requires,” or a prosecutor’s ideas about what justice demands in a given case. Prosecutors are responsible for not only enforcing the law, but for also doing justice, which means a prosecutor may decide not to file charges in a certain case because justice requires it, even if the circumstances of the case could indeed support a criminal conviction. For example, if a person with no criminal record has an isolated lapse in judgment and commits a misdemeanor, a prosecutor may conclude that justice requires the person not be charged, as the time and money required to secure a conviction may be too extreme in light of the fact that it is unlikely the person will commit another crime.

The Grand Jury Process

If a case involves possible felony charges, a prosecutor may choose to allow the grand jury to determine whether charges should be filed, and which ones. A grand jury is somewhat similar to a jury in a trial, and is comprised of ordinary citizens selected at random. The grand jury will hear evidence presented by a prosecutor, and then decide whether to indict a person, meaning they determine whether criminal charges are appropriate.

However, unlike a trial jury which serves for only one case, a grand jury normally serves for between six months to a year and a half, and therefore will deal with many cases during a period of service. Additionally, grand juries different from trial juries in several other important respects:

  • A grand jury consists of 15-23 people, while a trial jury is comprised of only 6 to 12 people.
  • Trial juries must unanimously agree in order convict a defendant. Grand juries on the other hand do not need to reach a unanimous decision to indict a defendant, and in federal grand juries for example, need only a 12 juror concurrence.
  • Grand jury meetings are closed proceedings that cannot be viewed by the public, while trial juries serve in public trials.
  • Trial juries decide whether a defendant is guilty of a crime, whereas a grand jury determines whether there is enough evidence for a case to go to trial.

When a prosecutor presents a case before the grand jury, he introduces evidence in the case and presents the jurors with a “bill” consisting of the proposed charges. This process is secret in that the public may not observe.  Usually, the prosecutor will call a witness to testify, and the suspect and his lawyer may not be present. After being indicted, a defendant may be able to obtain a transcript of the grand jury proceeding, but is generally prohibited from attending the actual meeting. A prosecutor can choose to call the suspect as a witness, but this is rarely done. If it occurs, a suspect often refuses to testify, as they are entitled to do so pursuant to their Fifth Amendment privilege against self-incrimination. If the grand jury does decide to indict the suspect, it will return what is referred to as a “true bill,” thus validating the prosecutor’s choice of charges. If not, it will return a “no-bill,” rejecting the prosecutor’s proposed charges. However, even if a no-bill is returned, the prosecutor may later return to the grand jury with additional evidence against the suspect, or in some jurisdictions, bypass the grand jury by filing a criminal complaint with the court.

The Preliminary Hearing

If a prosecutor does decide to file a criminal complaint instead of presenting the case before the grand jury, in a felony case the suspect will be entitled to a preliminary hearing. At the hearing, the prosecutor is required to show that he has enough evidence against the suspect to warrant a trial in the matter.  If the case has been indicted by the grand jury, there will not be a preliminary hearing. As such, prosecutors will generally choose to present the case to a grand jury, which requires them to reveal less about their case before they go to trial.