Life as a Criminal Defendant

If you are arrested for a crime, this information will be forward to a prosecutor’s office in the jurisdiction where the crime occurred. Once arrested, the prosecutor has no more than seventy-two hours to file charges formally against a defendant.  In some jurisdictions, this period is even shorter.  Prosecutors utilize something known as “prosecutorial discretion” when determining what charges to file against an individual.  To make an informed decision, prosecutors are delivered arrest reports from law enforcement detailing all the facts surrounding your individual case.  In most areas, the sheer number of cases that cross a prosecutor’s desk daily tabulate into the hundreds.  Therefore, prosecutors may file charges against defendants that are potentially going to be dismissed later on down the road.  Having a lawyer look over all aspects of your case, and potentially deal directly with a prosecutor, can greatly influence the type of charges you may face.

There are some reasons that influence prosecutors to drop, dismiss, or lower the severity of charges against defendants, which may include:

  • Defendant’s offense is minor or trivial
  • Prosecutor’s lack the necessary evidence to successfully pursue certain charges due to internal error
  • The victim or key eyewitnesses refuse to press charges or testify in court
  • Prosecutor drops charges of one suspect for testimony against another
  • Prosecutor feels defendant performed illegal action in error or unknowingly and are not a criminal threat

The Charging Process

Prosecutors can follow two patterns when charging defendants.  For misdemeanor crimes, prosecutors can file a criminal complaint directly to the courts.  For felony charges, prosecutors may file a criminal complaint, also known as accusatory pleading, or hand down an indictment through a grand jury. 

When filing charges against defendants, prosecutors may engage in a practice known as “overcharging”, which entails filing the most severe charges against a defendant that evidence can even partially support.  While the higher charge may not prove applicable, the defense attorneys will be stuck with negotiating reduction of these larger charges, rather than probing the true crime in question.  In addition, prosecutors may elect to charge individuals with more than one criminal charge for one criminal act.  When filing the criminal complaint or grand jury indictment, prosecutors are required to disclose very little information to the defendants about what is contained in the complaint, save for the charges that are being filed in most cases.

Grand Juries

Per federal and some state laws, felony charges must be secured against defendants using a method known as grand jury indictment.  There are specific procedures for grand jury proceedings that are highly different from regular juries.  For starters, grand juries decide whether to file charges against an individual based on prosecutor’s evidence.  Grand juries in no instance determine the guilt of a suspect.   Some other differing factors about grand jury indictments include:

  • Grand jury proceedings are typically performed in secret
  • Grand juries consist of sixteen to twenty-three individuals, as opposed to the usual six or twelve in petit juries
  • Grand juries do not need to return unanimous decisions to proceed with charges, but rather usually only require at least twelve favoring indictment
  • Grand juries only hear evidence presented by the prosecutor, and in turn, typically return in favor of indictment with criminal charges
  • Defense attorneys may be able to ascertain from prosecutors whether grand jury cases are being heard concerning one or more of their clients
  • Subpoenaed witnesses to grand jury indictments can decline to testify against themselves under the rights of the fifth amendment

 Arranging for Pre-Trial Diversion Sentencing

In some cases, defendants can avoid criminal charges and conviction by adhering to probationary process known as pre-trial diversion, alternative sentencing, or any combination of these terms.  In essence, diversion programs keep offenders out of the jail system, while using external programs to rehabilitate some defendants.  Prosecutors have discretion in diverting cases out of the criminal justice system, which allows successful diversion program members to have a clean criminal record.

A number of individuals and crimes are predisposed to receiving pre-trial diversion programs, these factors include:

  • Metropolitan areas with an overburdened criminal justice system
  • Non-violent offenders, especially those involving personal possession of drugs or alcohol
  • Youthful offenders involved in youth oriented crimes such as vandalism, assault or fighting, minor in possession of alcohol, and other drug related offenses
  • Persons with no previous criminal record
  • Recommendations from esteemed members of the community or rehabilitative agencies supporting diversion in lieu of criminal proceedings

Essentially, eligibility for pre-trial diversion is on a case-by-case basis, but your attorney can request diversion at any point after an arrest up to the first court appearance.  Although suspects avoid criminal charges, they are required to pay for and meet the conditions of the alternative sentencing program, which can prove costly and time consuming, but most likely better than criminal sentencing. 

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