Legal Guide

How Does a Prosecutor Decide Whether or Not to File Charges?

Police only need probably cause to arrest a suspect in connection to a crime. This means that officers arrest individuals who have perpetrated a crime and individuals who are innocent of all charges. Once someone has been arrested it’s up to the county prosecutor to decide whether to file criminal charges. At this stage, it is prudent for the defendant to hire an attorney from the county they were arrested to guide them through the process.

For example, if a suspect is arrested in San Diego County, it’s important to hire a San Diego Criminal Attorney, because they will have experience working against various county prosecutors and judges. There are several factors that influence a prosecutor’s decision, such as political motivation, the police report of the incident, the defendant’s criminal history, and the evidence required for conviction.

Head prosecutors are elected officials that are often hired from within the counties Defense Attorney’s office. This election process takes into consideration the candidate's career as a prosecutor. This means that if a hotly contested social issue is in the news around election season you will see convictions that align with the public’s opinion at the time. One of the largest issues pertaining to the justice system is lengthy mandatory minimums for minor drug charges. If the county you live in does not agree with mandatory minimums, then prosecutors may not pursue charges or will seek a plea deal for a lesser charge.

A police report is crucial to the decision for the prosecutor to file charges, and ultimately determine which charges to file. The report describes the officer’s account of the incident, and it may include witness testimony that corroborates with the officer’s report. At this stage, it’s critical for the prosecutor to thoroughly read the report and determine if there is cause to file formal charges or to send the case to a grand jury to determine which charges to file.

The defendant’s criminal history plays a huge role in determining which charges to file. Many felons have previous plea deals or probation stipulations that they must stay out of trouble for a predetermined length of time. If the defendant is out on parole, then they will have to complete the remainder of their sentence with additional time added for the new charges. Many people who plead guilty to receive a lesser charge will have that plea overruled and they will be found guilty of a harsher previous charge with additional sentencing for the new crime.

For example, a murder suspect enters a guilty plea to receive a lesser conviction of manslaughter. After five years, that same person stabs an inmate in prison. They will then have their original sentence changed to a murder charge, and they will be charged separately with the stabbing.

The evidence is the most important factor for a prosecutor deciding whether or not to pursue charges. To put it simply, a prosecutor isn’t going to waste their time on a case they can’t prove in court. Trials are costly, and state prisons have a five-year recidivism rate of 76.6%, so if there is not sufficient evidence the case is tossed because the suspects are likely to reoffend in the future.  

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