In criminal cases, law enforcement may investigate an alleged crime before filing criminal charges to determine whether the case should be brought and/or to build a stronger case against a defendant. It is important that potential defendants understand the opportunities and pitfalls that this stage of a case presents. This article explains what pre-filing charges are and discusses steps that can be taken by defendants to protect their rights and potentially avoid the filing of claims altogether.
What are Pre-Filing Charges
Pre-filing charges refer to the period in a criminal case before criminal charges are officially filed against an individual. A criminal case typically starts when a police officer arrests a person, a court issues a summons instructing the individual to appear in court, or when a court issues an arrest warrant. When a person is arrested (with or without an arrest warrant), he/she/they must appear before the court for an arraignment hearing to be informed of certain fundamental rights. In addition, if a defendant is arrested without an arrest warrant, the court must determine if there is probable cause to support the arrest and detain the person. The court will also set the amount of bail and type of bond, if allowed by law. In some cases, a prosecutor may also call a grand jury to decide if there is enough evidence for a trial or to issue an indictment. Throughout this period, law enforcement may continue to investigate the alleged crime and gather new or additional evidence in support of filing charges.
Consult a Criminal Defense Lawyer
A defendant should retain an attorney during the pre-filing stage of a criminal case. An attorney can represent the defendant at the arraignment hearing and argue for a lower bail amount. An attorney can also assist the defendant in gathering information, speaking with investigators and prosecutors, and can negotiate with the prosecutor for lesser charges or that no charges should be filed.
Communicate with Investigators
Anything a defendant says to law enforcement can and will be used against the defendant in bringing charges or trying the case. Defendants are allowed to have an attorney present anytime they are questioned and the attorney can advise the defendant during the investigation and protect his/her/their legal rights.
Communicate with Prosecutors and Negotiate for Lesser Charges or No Charges
A defendant’s attorney can communicate with the prosecutor to obtain information about the investigation and to better understand the government’s position, plan, and process in the case. An attorney can also negotiate with the prosecutor related to any aspect of the pre-filing stage, including negotiating for lesser charges or no charge at all. When warranted, an attorney can also negotiate with the prosecutor’s office to develop helpful mitigation measures so defendants can get their lives back on track through substance abuse treatment, therapy, education, and coaching.
Our Team
BHGR’s Criminal Group routinely represents clients during the pre-filing phase of a criminal case and has successfully negotiated with prosecutors for lesser charges, appropriate mitigation measures, dismissal, and no-filing decisions.
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