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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 certain 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 |
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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 on the willingness of most
prosecutors to vigorously prosecute drunk driving
cases.
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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 (unless in custody - the preliminary hearing right
applies only to class 4, 5 and 6 felonies).
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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