What most people do not understand is that a person, even if arrested by the police, is not formally charged with a crime until/unless a prosecutor at the District Attorney's office files a formal complaint with the clerk of court. Before this happens, your attorney may be able to influence the prosecutor’s decision to file charges against you.

The Filing Process

If you are being accused of a crime, it is important for you to understand the process leading to charges being filed against you. This process can happen in one of two ways:

Pre-Filing Investigation

During a pre-filing investigation, a police officer investigates a crime and does not make a physical arrest. If you are being investigated for a crime and have not been arrested, this is because the officer is not entirely sure that you have actually committed a crime due to lack of proof or because the officer is unable to find you. Once the police officer has gathered sufficient evidence, they will meet with the prosecutor and present all of the evidence that the officer has obtained, including physical evidence, statements from witnesses or even your own statements. The officer may recommend certain charges, but only the prosecutor has the power to formally file criminal charges against you. If the prosecutor determines that there is enough evidence to proceed, they will draft a formal complaint to file with the court.

Once these formal charges have been filed, the District Attorney’s office will do one of two things:

  1. Send you a written notice by mail with an indication of the charge(s) and court date; or
  2. Issue a warrant for your arrest.

Once formal charges have been filed, it is too late for your criminal defense attorney to impact the prosecutor’s filing decision. That is why it is absolutely critical to retain a criminal defense attorney immediately—before formal charges have been filed.

Arrest and Police Report

Often, a police officer makes a physical arrest of the accused and takes them to jail without an initial investigation. This will occur if a police officer catches you "in the act" of committing a crime or has probable cause to arrest you. After you are arrested, the police officer will draft a police report and forward that report to the proper prosecutor's office. As is the case during a pre-filing investigation, the prosecutor (and the prosecutor alone) will determine whether there is sufficient evidence to proceed with the formal filing of criminal charges. If so, they will file a formal complaint with the court, and the prosecution commences.

How Your Attorney Can Influence the Prosecutor's Decision to File

In either of the two aforementioned scenarios, if the prosecutor decides or is convinced that the evidence is insufficient, or there isn't a reasonable likelihood of successful prosecution, they have the option of:

  1. Not filing and "rejecting" the case outright; or
  2. Sending the case back to the appropriate law enforcement agency for further investigation.

If the case is sent back for further investigation, charges must be filed by the prosecutor's office within the applicable statute of limitations. This is the time limit within which the prosecutor must file charges against you, beginning from the date that the alleged crime took place. Generally, in California, the statute of limitations for criminal offenses is as follows:

  • For misdemeanor offenses, the statute of limitations is one year.
  • For felony offenses, the statute of limitations is three years.
  • With certain felony offenses, there is a longer statute of limitations.

There is usually a gap between the time that the police officer generates the police report and the time that the prosecutor makes their filing decision. It is during this gap in time that your attorney is able to have the most impact on the prosecutor's decision in your case. Your attorney may be able to convince the prosecutor that the evidence against you is insufficient before the charges are filed, thus persuading the prosecutor to delay the case for further investigation or reject the case outright.

Once charges are formally filed, the case can only be dropped by way of a dismissal or not guilty verdict as a result of a lengthy court process. This gives the prosecution more time to build a strong case against you, decreasing your chances of having your case dismissed. If you are arrested, or think you may be arrested, any delay in retaining an attorney to defend you will put you at a significant disadvantage. Often, your attorney can have the most impact on the outcome of your case before the decision to file has been made. You should hire a skilled defense attorney right away.

If you or a loved one is under investigation for a criminal charge, or suspect that you may face criminal charges in the near future, it is critical that you speak to an experienced criminal defense attorney as soon as possible.

This content originally appeared at wklaw.com/how-your-attorney-may-prevent-any-charges. The writer retains all copyrights.