If you have been arrested and charged with a criminal offense, chances are you are scared and have no idea what happens next (that is, if this is your first experience with the court system). Not long after you are arrested, the information pertaining to your arrest is forwarded to the local prosecutor’s office. The prosecutor only has seventy-two hours to formally file charges against you. In some areas, this time frame may be even shorter.
Prosecutors are provided with the arrest reports from police officers that detail the events that occurred around your arrest. It is up to the prosecutor to determine what charges are filed against you. Because of the large amount of cases that the prosecutors see every day, they may file charges that may very well be dismissed at some point — just to make the seventy-two hour deadline. This is just one reason you need to hire a criminal defense attorney so that they can look over your case, possibly communicate one on one with the prosecutor, possibly influencing the severity of the charges you face.
Situations that may determine whether a prosecutor lowers, drops or dismisses the charges include:
- Lack of evidence needed to pursue the charge successfully due to an error that was made internally
- The offense is minor in nature
- The victim and or eyewitnesses decide not to press charges or even testify
- Charges are dropped charges in exchange for testifying against someone else
- The Prosecutor thinks that you committed action without really knowing what you were doing and feels you are not a threat criminally
What is the process for being charged?
If you are charged with a felony offense, the prosecutor files a criminal complaint or they may get an indictment through a grand jury.
Don’t be surprised if you are charged with a charge that the evidence can only support a portion of the charge. The prosecutor realizes the higher charge cannot stand, however the defense attorney is now trying to negotiate a lesser charge and not really delving into the real infraction. When prosecutors try for an indictment through a grand jury, they do not have to reveal much information to the defendants about what the complaint says, except for the filed charges.
What happens if my case goes to a grand jury?
The grand jury will be the entity that determines whether or not to file charges against you based on the evidence presented by the prosecutor. They will not decide your guilt or innocence. A grand jury indictment differs from the prosecutor just filing the charges in these ways:
- There are 16-23 people on a grand jury as opposed to six or twelve on a standard jury
- The proceedings of the grand jury are generally secret
- Their decision does not need to be unanimous to go ahead with charging, instead only twelve votes for and indictment are necessary
- Evidence from the prosecutor is presented and they will usually indict with criminal charges
- The defense attorney may be able to obtain information from the prosecutor as to whether or not their case is being heard by a grand jury
- A witness that is subpoenaed to testify before a grand jury can refuse to do so citing their fifth amendment rights
What is a Pre-Trial Diversion Sentence?
Depending on the charges, you may be able to stay out of the jail system and participate in either rehabilitation or other external programs. Here are some reasons you may be able to go this route:
- If your jail system is overcrowded
- If your crime is non-violent, or it involves drug or alcohol possession
- You have no previous record
- If you are young and the crime is considered youth-oriented such as fighting, vandalism, fighting, minor possessing alcohol
Talk to your attorney about requesting a trial diversion. You may avoid being charged criminally, but you will still be responsible to pay any fines and cooperate fully with the alternative sentence you are given. This can be expensive and take a lot of time but it is probably still a better alternative than being sentenced as a criminal.
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The 72-hour window for prosecutors to file charges is something a lot of people don’t realize until they’re already in the system. I went through a similar situation a few years back, and the pressure prosecutors face with their caseloads really stood out to me here — it explains why charges sometimes get filed hastily only to be reduced later. The point about hiring an attorney early so they can communicate with the prosecutor is spot on, because in my experience that early conversation actually made a difference in how my case was handled. I also appreciated the breakdown of reasons charges might be lowered or dismissed, especially the note about victims or witnesses deciding not to press charges. It’s reassuring to know the process isn’t always as rigid as it first appears.