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How Are Criminal Charges Filed?

Criminal trials make for great TV. Dramatic illustrations of the criminal procedure show detective work and the arrest, and then jump immediately to the trial. But what happens before trial may be at least as important. How are criminal charges brought against someone?

This article discusses how charges are filed against suspects and what happens between the arrest and the trial.

How to Bring Criminal Charges Method 1: The Complaint

The first way a criminal trial can start is with a document called the "information," or in many jurisdictions, the "complaint." This document is written by the prosecutor before the preliminary hearing, if there is one. (There is no preliminary hearing for misdemeanor crimes.) The complaint gives the defense notice of what charges are being brought against their client.

In the complaint, the prosecutor briefly recites the elements of the offense and the date, location, and names of those involved. For example, a theft complaint will look like this: "On or about [date], in [city, county, state], [defendant] did, without permission, use or exercise control of [object], the property of [the victim], with the intent to deprive [the victim] of the property." Prosecutors refrain from including extra details.

The substance of the information will come from the police report and other documents produced through police investigation, but it can also come from complaints brought by citizens.

Prosecutors can then proceed to trial, although some states require felony charges to be brought by indictment. In the federal system, a prosecutor can bring misdemeanor charges by information or complaint. Felony charges can be brought by complaint, but only if the right to a grand jury is waived by the defense.

How to Bring Criminal Charges Method 2: Indictment

The second way a criminal trial can start is by indictment through a grand jury. Prosecutors use this method because the law requires it for felonies in most states and the Fifth Amendment requires it for federal felony prosecutions. Some prosecutors use it as a test trial.

The prosecutor reviews the evidence and prepares an indictment document. That is submitted to the grand jury, and the prosecutor presents evidence to the grand jury in support of that indictment.

The grand jury can hear from witnesses and can even question witnesses directly. They can also hear evidence that is likely inadmissible in court. The grand jury will then decide which charges in the indictment, if any, are supported by probable cause and are allowed to proceed.

How to Bring Criminal Charges Method 3: Citation

The third way to bring a criminal charge is the easiest. A police officer sees someone committing a minor crime, such as speeding, jaywalking, or littering, and writes up a ticket, also known as a citation.

State statutes determine which types of crimes can be charged by using a citation. Often, these are minor infractions. not punishable by prison. The person who receives the ticket has the opportunity to contest it in court. Often they may be able to pay a fine to resolve the matter.

But this method of charging crimes is always subject to review by the prosecutor once the defendant arrives in court. Police officers are not trained as lawyers, and sometimes they issue citations that a prosecutor would not approve. Once court proceedings begin, prosecutors have an opportunity to review the officer's charging decision and can override it with a dismissal of the charge.

Importance of the Pre-trial Period

Over 90% of criminal cases are resolved before trial; in federal cases, that number is as high as 97%. So, the pre-trial phase is by far the most important phase of a criminal case. It's the period before trial that ultimately shapes the outcome of the case.

The pre-trial phase is bounded by several constitutional protections that prevent abuse by the government. The defense team can:

  • Object in pre-trial motions to certain items of evidence (such as witnesses or confessions) and prevent their admission at trial,
  • Share favorable (exculpatory) evidence with the prosecution that tends to exonerate the accused
  • Sharing mitigating circumstances that might cause the prosecutor to be more lenient (for example, a history of mental illness or reduced cognitive capacity)
  • Negotiate for reduced charges or lighter punishment

How are Criminal Charges Filed? Ask an Attorney

Facing criminal charges can be terrifying and confusing. The assistance of a qualified lawyer can make an enormous difference, both in your stress during the defense and in the outcome. Contact a local criminal defense attorney to discuss the facts of your case and to get help crafting the best defense to criminal charges.

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