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How People Get Charged With Crimes

From the Nolo.com Criminal Law Center

Learn how police officers and prosecutors initiate criminal cases.

To be "charged" with a crime means to be formally accused of that crime. Police officers usually start the charging process with an arrest or citation. They then send copies of their reports to a prosecutor's office staffed by government lawyers whose job it is to initiate and prosecute criminal cases. The prosecutor is supposed to either:

  • make an independent decision as to what charges should be filed, or

  • in felony cases, enlist the help of citizens serving as grand jurors in deciding what charges to file.

Prosecutors can look at all the circumstances of a case, including the suspect's past criminal record. They can file charges on all crimes for which the police arrested a suspect, can file charges that are more or less severe than the charges leveled by the police, or can decide to not file any charges at all.

For suspects who are in custody, speedy trial laws typically require prosecutors to file charges, if at all, within 72 hours of arrest. Some jurisdictions require prosecutors to charge a suspect even sooner. For example, California requires that charges be filed within 48 hours. (Cal. Penal Code Sec. 825.) However, prosecutors' initial charging decisions are subject to change. For example, a prosecutor's final decision on charges may not be determined until after a preliminary hearing, which may take place more than a month after arrest.

Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers (usually called police or arrest reports). Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, weather conditions and witnesses' names and addresses if that information is available.

Prosecutors May Also File Charges to Satisfy Important Political Constituencies and Address the Demands of Victims

Most prosecutors are elected officials. Many of them view their position as a stepping-stone to higher office. Their charging decisions are often, therefore, affected by public opinion or important support groups. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted. For similar reasons, a prosecutor may pursue otherwise weak prostitution charges to avoid alienating powerful civic groups. On the other hand, crimes are offenses perpetrated against society, and, as a representative of society, many prosecutors will act in accordance with what they think society as a whole society wants and deserves.

Deputy or assistant prosecutors may feel that appearing tough will help their careers -- either within the prosecutor's office or later if they want to become judges. Experienced defense attorneys understand that prosecutors must sometimes be seen as "taking a strong stand" publicly, even though they may be willing to respond to weaknesses in individual cases at a later stage of the process.

Prosecutors often consider a victim's views when deciding whether to file a criminal charge, or how serious a charge to file. This is especially true when organized constituencies of crime victims exist. Organized groups often pressure prosecutors to "go hard" on certain types of crimes, on pain of campaigning against the prosecutor at the next election. For example, groups of "spousal assault victims" have formed in many communities. A prosecutor deciding whether to file a spousal assault charge, or whether to file it as a misdemeanor or a felony, is likely to consider the reactions both of the group and of the individual victim. Another example of this community-based pressure is the effect that MADD (Mothers Against Drunk Driving) has historically had on the willingness of most prosecutors to vigorously prosecute drunk driving cases.

Occasionally a prosecutor will decide that a basically good person made a stupid mistake that shouldn't result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice, or because it would be a waste of resources (time and money) to charge such a person with a crime, even where the initial arrest was valid.

The Role of a Grand Jury

If a felony is involved, prosecutors sometimes leave it to grand juries to make the charging decisions. Grand juries are similar to regular trial juries (technically called "petit juries") in that they are made up of randomly selected individuals who listen to evidence and decide whether charges should be brought against a particular individual. However, unlike petit juries, which only sit on one case, grand juries involve a time commitment typically lasting between 6 and 18 months, and the grand jurors may, in the course of their service, address many cases. In addition, these crucial differences exist:

  • Petit jurors decide whether defendants are guilty. Grand juries decide whether to "indict" suspects (charge them with crimes.)

  • Grand juries meet in secret proceedings. Petit juries serve during public trials.

  • Grand juries have 15-23 people, 16-23 in federal courts. (See Federal Rule of Criminal Procedure 6(a).) By contrast, a petit jury usually consists of between 6 and 12 people.

  • Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

How a Grand Jury Works

When a prosecutor brings a case to the Grand Jury, he presents the jurors with a "bill" (the charges) and introduces evidence -- usually the minimum necessary, in the prosecutor's opinion -- to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or her witnesses being present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however -- and this is a big reason why prosecutors like to keep the evidence to the minimum.

Although the prosecutor can also call the suspect as a witness, this is not typically done. And even if a suspect is called, she will probably invoke her privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.

If the grand jury decides to indict, it returns what is called a "true bill." If not, the grand jury returns a "no-bill." But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.

If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to convict the defendant. However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. This means that most prosecutors choose the grand jury indictment process so that they don't have to produce as much evidence before the trial.

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