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What Happens When You're Charged with a Crime

How a Criminal Case Gets Filed

How does a criminal case get filed? First, there is an arrest and the police report that follows. The prosecutor then reads the police report and decides whether or not the arrested should be charged with a crime. Alternatively, the prosecutor can go to a grand jury and ask them to decide what criminal charges should be filed (an indictment). Finally, a judge holds a preliminary hearing where he or she decides whether there is enough evidence to proceed.

The Arrest and Report

After an arrest is made, but before anyone is charged with a crime, the police create an arrest report and forward 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).

Based on this report, the prosecutor can either:

  • File a complaint with the trial court, setting forth the charges
  • Go to a grand jury, present the evidence to them, and ask them what criminal charges, if any, should be brought
  • Elect to not pursue the matter

Prosecutors not only have a lot of discretion regarding whether or not to file, but also regarding which of many possible crimes a person should be charged with (including a lesser charge).

Charges Must Be Filed Quickly

Prosecutors generally file criminal charges or not within 3 days, although in some jurisdictions in as few as 2 days. Because prosecutors must file so quickly, the crime you are charged with intially may change significantly over time.

Whether to Prosecute

Prosecutors have a lot of discretion on whether to charge a defendant and which offenses they wish to pursue. Here are some of the most important factors to a prosecutor:

  • Political Aspirations: prosecutors often run for office or seek political appointments. As a result, they are keenly aware of the image prosecuting a particular offense sends the community. Even if the evidence is questionable, if there is considerable community outrage, a prosecutor may decide to pursue a case. Alternatively, certain crimes will almost always be prosecuted, because not prosecuting them sends a bad message (e.g., DUIs).
  • Office Policies: prosecution offices often have policies regarding which crimes they want to prosecute. There may be a push to prosecute a certain kind of crime or a policy to not prosecute other crimes that the office considers less important.
  • Prosecutor's Notion of Justice: prosecutors are people, and just like everyone else have beliefs and ideas about right and wrong. On one hand, it may lead a prosecutor to pursue a case more aggressively than may be warranted by the facts. On the other hand, it may lead to a prosecutor filing lesser charges or choosing not to pursue a case where the prosecutor thinks justice will still be served even though no one is charged with a crime.

The Grand Jury's Role

Grand juries are similar to regular juries (also known as "petit juries", except that a grand jury's job is simply to decide whether or not charges should be brought in the first place rather than deciding the guilt or innocence of a person at trial. A prosecutor presents evidence to the grand jury, and the grand jury returns its verdict on whether or not charges should be brought and what charges those should be. Here are some of the other primary differences between a grand jury and a regular jury.

  • Grand juries view evidence to decide whether to file charges, but don't decide guilt like a regular jury.
  • Grand juries generally have more jury members than a regular jury, with some grand juries having as many as 23 members. Regular juries generally have between 6 and 12 members.
  • Grand juries don't require a unanimous decision and sometimes only require a simple majority. Regular juries require a unanimous decision.
  • Grand juries meet secretly, whereas regular juries serve in public trials.

How Grand Juries Work

Unlike regular juries, grand juries do a lot behind closed doors. This means that potential defendants are not present during grand jury proceedings and neither are their lawyers. The prosecutor gives the jurors a "bill" of charges, and then presents evidence, including witnesses, in order to obtain an indictment. These proceedings are secret, but transcripts for the proceeding may be obtained after the fact. Prosecutors like grand juries because they function like a "test" trial and enable prosecutors to see how the evidence will be received by jurors.

If the grand jury indicts a defendant based on the evidence presented, it returns a "true bill". If the grand jury decides not to indict, it returns a "no bill". However, even if a grand jury does not indict, the prosecutor can return to the same grand jury and present additional evidence, get a new grand jury, or even file criminal charges regardless.

The Preliminary Hearing

If the case a is a felony and the prosecutor bypasses a grand jury to file charges, then a preliminary hearing is held. At the hearing, the prosecutor must demonstrate to the judge that the state has enough evidence to warrant a trial.

If the case proceeds based on a grand jury indictment, however, then no preliminary hearing is required. For this reason, prosecutors tend to favor grand juries, because the grand jury process allows them to wait to reveal what evidence they have until trial.

Next Steps
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