How Prosecutors Decide Which Charges to File

Posted By David L. Carlson, Attorney At Law || 2-Nov-2015

Criminal arrests and prosecutions are distinct from one another primarily for protecting citizens from the arbitrary use of law enforcement’s power. Generally, well-meaning officers make arrests when they feel they have probable cause to believe that someone has committed a crime.

However, not all arrests lead to convictions or even formal charges. While the police have their place in society, they are not the ones who file criminal charges, that’s the prosecutor’s job.

Prosecutors only file formal charges when they feel that they have a strong case. In other words, when they believe that they can prove beyond a reasonable doubt that someone is guilty. Prosecutors like to win and generally won’t file charges unless they strongly believe they’ll prevail in court.

Understanding ‘Prosecutorial Discretion’

Prosecutors have what is called “prosecutorial discretion.” This means that they can look at the facts of a case, including the suspect’s criminal record, and decide what to charge the person with.

A prosecutor can charge a suspect with each crime that they were arrested for, or they can charge the suspect with something more severe or less serious than what he or she was arrested for.

After looking at the facts of the case, the prosecutor may believe that there isn’t sufficient evidence to move forward, and they could decide not to file charges at all.

Making Decisions Based on the Arrest Report

The police report can be an important piece to the puzzle. Often, the prosecutor bases their initial charge on the information in the arrest/police report. Soon after an arrest is made, the police complete an arrest report and quickly forward it to the prosecutor who’s assigned to do what’s called case intake.

The arrest report provides a detailed summary of events, including the date, time, location, witnesses’ names and addresses. Though arrest reports are not usually admissible as evidence, they can have a significant impact on a criminal case.

Arrest reports are impactful because they can determine which charges are filed, but they can also play a role in:

  • How much bail is set
  • The outcome of a preliminary hearing
  • A prosecutor’s willingness to plea bargain
  • Trial tactics

As experienced Richmond criminal defense attorneys, we understand why a prosecutor may want to take a strong stance publicly, and when they may be willing to respond to a weakness in an individual case. As professionals with a former prosecutor on our team, we know the pressure points and how to work with them.

Call Carlson & Collier for a complimentary consultation!

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