Our former prosecutor tells how law enforcement & prosecutors initiate criminal cases.
Criminal cases tend to get started with a police arrest report. Once received, the federal or state prosecutor decides what criminal charges to file if any. Some cases go to a preliminary hearing in front of a judge who determines if there is sufficient evidence to proceed. Other cases begin with a grand jury issuing a criminal indictment.
Former prosecutor Ben Stechschulte explains how criminal cases get started.
- A prosecutor decides if the case should go to a grand jury, which will decide what charges, if any, to file. Officers may also recommend filing specific charges. But ultimately, prosecutors decide what the charges will be.
- Prosecutors’ initial charges are subject to change; including after a preliminary hearing.
- If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. They are similar to regular trial juries but decide whether to indict someone. They do not determine guilt or innocence.
- Charging procedures can vary significantly between federal and state courts. If you’ve been arrested, consult an experienced criminal defense attorney to discuss the specifics of your case.
Arrest Reports and Possible Criminal Charges
After an arrest, the police report goes to a prosecutor who initiates cases. The arrest report summarizes all of the events leading up to the arrest. Offering details on dates, times and locations, and any applicable witness names. The police officer specifies the crime(s) made the basis for the arrest.
Once received, the district attorney will then typically:
- determine the case be charged and file a “complaint”,
- decide that the case should go to a grand jury, to decide what charges, if any, to file, or
- choose not to pursue the case.
Officers may recommend the prosecution file additional charges, but ultimately prosecutors will determine charges.
At the first court appearance, the defendant will typically learn what the formal charges will be. It’s important to note that prosecutors’ initial charges are subject to change. They may not make the final decision on what charges to file until the preliminary hearing is complete.
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What to Expect at a Preliminary Hearing
Should the prosecutor decide to file a felony complaint to the court rather than to a grand jury, the defendant is entitled to a preliminary hearing. During which, the prosecution must show that the state has sufficient evidence to warrant a trial. In the case of a grand jury indictment, no preliminary hearing needs to be held.
How Grand Juries Work
Prosecutors may use a grand jury to decide whether charges should be filed. Grand juries like regular trial juries are made up of randomly selected individuals. Grand jurors may address many cases – not just one – during the course of their service.
A grand jury may have between 16 and 23 people serving. Unlike a trial jury, they do not need to be unanimous in their decision. In federal court, typically an indictment may be returned if 12 or more grand jurors agree to indict.
In secret proceedings, the grand jury listens to evidence. It is common for witnesses to be called to testify. This happens without the suspect or the suspect’s lawyer present. In some cases, the defense may be able to obtain transcripts or recordings of grand jury proceedings and we can use these to prepare for trial.
If The Grand Jury Decides to Indict
In cases where an indictment is recommended, the grand jury returns a “true bill”. If they choose “no bill”, this does not necessarily mean the case is closed. The prosecution may be able to return to the grand jurors with additional evidence, go to a second grand jury, or file a criminal complaint directly with the court.
Getting a Defense Lawyer
Charging procedure can differ significantly between federal and state court and even county to county. If you or a loved one has been arrested, consult a top-rated criminal defense lawyer. An attorney can review the specifics of your case and explain the best defense strategies applicable to the law.
Need the help of a board-certified trial attorney? Our defense team is led by a former Florida prosecutor. We can help you mitigate your risk should your case go to trial. Call Stechschulte Nell in Tampa, FL today – 813-280-1244.