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How Prosecutors Decide to Charge You With a Crime

If you've watched a lot of crime shows and police procedurals on TV, chances are you have some idea about how the prosecutor decides to charge someone with a crime. But television needs to fit everything into 50 minutes. In the real world, there are more steps between the arrest and the courtroom.

This article will explain the process a person goes through from being arrested to being charged with a crime:

  • Arrest and police report
  • Grand jury indictment
  • Preliminary hearing
  • Criminal charges

The Arrest

First, there's an arrest, right?

Well, not always. Minor misdemeanors are often charged and prosecuted without an arrest. Think about getting a traffic ticket. You weren't arrested. You were just handed a ticket with instructions about how to pay it. If you didn't want to pay, you could schedule a hearing date in court. You were never arrested.

For many crimes, certainly any serious crime, there will be an arrest.

The Arrest Report

After an arrest is made, the police officer writes an arrest report and forwards it to the prosecutor. The report summarizes the events leading up to the arrest and the details of the arrest (dates, time, location, witnesses, etc.). The police officer "charges" the person with a crime, but those charges are subject to review by the prosecutor.

The prosecutor reviews the report along with all other evidence collected and can:

  • Decline to press charges,
  • Modify the charges from what the police officer suggested, or
  • Enhance the charges to make it a more serious offense.

This happens before the first court appearance.

Deciding to Prosecute, or Not

Just because you were arrested does not mean the government will necessarily pursue criminal charges. Prosecutors have a lot of discretion on whether or not to file charges against a defendant.

Some of the most important factors prosecutors consider include:

  • Conservation of judicial resources: Every case requires work from multiple branches of government, from police and courtroom security to court clerks and office staff. Most courts simply cannot prosecute every case they receive, so the prosecutor has to prioritize them.
  • Office policies: Prosecutor's offices often have policies regarding which crimes they want to prosecute and which crimes they consider less important.
  • The prosecutor's notion of justice: Prosecutors have beliefs and ideas about right and wrong just like everyone else. Those beliefs may lead a prosecutor to pursue a case more aggressively than may be warranted based on the facts. Or it may lead the prosecutor to file lesser charges, or choose not to pursue the case, because the prosecutor thinks justice will be served even if no one is charged with the crime. (For example, cases where the "guilty" party suffered a great loss as a result of their actions.)
  • Political Aspirations: Prosecutors with an eye toward political office may be keenly aware of their public image. They may choose to prosecute a high-profile case when there is community outrage or when it "sends a message," even if the evidence is questionable.

It is very rare that a prosecutor ever faces legal trouble for their decision whether to prosecute. Even if you feel the prosecution wasn't justified in charging you, there's typically little you can do unless the prosecution engaged in serious misconduct. This is because prosecutors have absolute immunity from civil lawsuits related to decisions made in their capacity as prosecutors. Similarly, it is rare that prosecutors will face sanctions or criminal charges for declining to prosecute, although it is not unheard of.

Once the prosecutor has decided to charge a case, they must decide whether to file the charges in a complaint with the trial court or to take the case to a grand jury. Federal felony prosecutions must go through a grand jury. Some states also require serious criminal charges to go through a grand jury, as well.

The Grand Jury

The grand jury is a check on the power of the prosecutor, preventing prosecutors from inventing serious charges out of thin air. The grand jury's job is to decide whether or not charges should be brought and what those charges should be. It does not decide whether the person who may go to trial is guilty or innocent. Some prosecutors use the grand jury proceedings as a rehearsal for a real trial, but others see it as just another work task that needs to be completed.

Grand juries generally have more jury members. Some grand juries have as many as 23 members, while trial juries have between 6 and 12 members.

How Grand Juries Work

Unlike regular juries, grand juries work behind closed doors. These proceedings are secret, but transcripts may be obtained after the fact. The potential defendants aren't present during grand jury proceedings and neither are their lawyers.

The prosecutor gives the jurors a "bill" of charges — that is, a list of the potential charges. The prosecutor then presents evidence and witnesses. Unlike trial jurors, jurors on a grand jury can ask questions of the prosecutor or of witnesses. They will see the evidence the jury is likely to see, but they can also view evidence that might not be admissible in court.

Grand juries are not required to arrive at a unanimous decision. A simple majority is sufficient. Regular juries require a unanimous decision. The grand jury will return a decision on whether the case should go to trial and which of the prosecution's charges should proceed (the prosecutor may have many charges).

If the grand jury indicts a defendant, it returns a "true bill." If the grand jury decides not to indict, it returns a "no bill." The prosecutor can still file criminal charges even if the grand jury returns a "no bill," but can likely only proceed on misdemeanor charges.

Even if the grand jury chooses not to indict, the prosecutor can return (within a certain amount of time) to the same grand jury to present additional evidence. Or the prosecutor can call a new grand jury.

If the case is a felony and the prosecutor bypasses a grand jury, then a preliminary hearing is held. (Some states do not allow this.) If the case proceeds based on a grand jury indictment, then no preliminary hearing is required.

 

The Preliminary Hearing

If needed, a judge might hold a preliminary hearing where they decide whether the state has enough evidence to proceed to trial. The prosecutor must present their evidence.

Prosecutors generally file criminal charges within two to three days. Because prosecutors must file so quickly, the criminal charges can change significantly over time.

Get Legal Help to Understand What Happens When You're Charged with a Crime

An attorney can provide crucial assistance regardless of where your case is in the process. If you've been charged with a crime, contact an experienced criminal defense attorney as soon as possible to discuss the circumstances of your case.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

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