What does it mean to “face criminal charges” or “have charges pressed against you”? We hear these phrases in movies, books, and the news. But how are charging decisions actually made?
Let’s start from the beginning on who makes charging decisions and why. Say a suspect is accused of assaulting someone outside a bar. The police show up and arrest the suspect. What happens from there? Does the victim go down to the police station to file a complaint and press charges? Not exactly—despite what you see on TV.
Victims play an important role in the charging process, often providing key evidence and testimony. In the above situation, the victim would likely give a statement to police regarding what (allegedly) happened. But it will be up to a government prosecutor, not the victim, to decide whether to file criminal charges against the suspect. Several reasons exist for this system of decision making.
Crimes affect more than individual victims; they impact the community as a whole—its sense of safety and well-being. Just as city, county, state, and federal law enforcement protect the public and investigate crimes, society uses public attorneys to prosecute criminal actors. Depending on where you live, prosecutors might be referred to as district attorneys, state attorneys, city prosecutors, assistant attorneys, commonwealth attorneys, or something similar.
Prosecutors have an ethical duty to see that justice is done—which doesn’t necessarily mean winning a case. A prosecutor must consider the needs of the victim and society and make decisions based on the facts, the evidence, and the law. Prosecutors must also weigh the potential harm in wrongly pursuing a case or pursuing a case too soon.
Pressing charges against an innocent individual can wreak havoc on that person’s life. An arrest alone can result in jail time, taking that person away from their family responsibilities and livelihood. The loss of freedom and damage to a person’s reputation can’t be undone. On the flip side, pursuing criminal charges too soon—without sufficient evidence—can result in a guilty offender going free.
Criminal charges carry serious consequences. And for all of the above reasons, the call to file charges rests with the prosecutor—someone not associated directly with the crime who can balance all the issues and is accountable to the public.
Many cases start with the police being called to crime scene in response to a call from the victim or a witness to the crime. Police interview the victim and any witnesses, gather evidence, and in some cases, arrest the suspect. The police might book the suspect at the police station and either release the suspect on bail or hold the suspect pending a bail hearing.
At this point, the police usually bring the evidence to the prosecutor, who will determine whether to press (file) criminal charges against the suspect. Criminal charges are filed with the court in what’s called a complaint (also referred to as an information or petition). The complaint identifies the suspect and specifies the crimes alleged to have been committed by the suspect.
As discussed above, before filing the criminal complaint, the prosecutor must evaluate the strength of the case, including the sufficiency of the evidence and expected cooperation from victims and witnesses. The prosecutor must also analyze the law and court rulings, the offender’s criminal history record (prior convictions), and any allegations against the police in conducting an arrest or search. As a representative of the government, the prosecutor also considers if prosecuting the case is the best use of public resources.
What Happens If a Victim Doesn’t Cooperate?
A prosecutor will have an easier time building and proving a case to a jury if the victim cooperates. As noted above, the victim’s expected level of cooperation factors into a prosecutor’s decision, but that doesn’t mean the victim's cooperation always makes or breaks a case. A victim’s fear or reluctance to cooperate might increase the importance of prosecuting the suspect (for instance, in domestic violence cases). A prosecutor can always subpoena a victim, but forcing a victim to take the stand and testify can backfire. If the victim won’t or is afraid to cooperate, the prosecutor will need to determine if other evidence will likely be enough to get a conviction.
In some states, the prosecutor presents the evidence to a grand jury to decide if charges are warranted. Grand juries usually consist of 15 to 23 people who are summoned to hear only the prosecutor’s side and evidence in the case. The grand jury’s job is to decide if the evidence supports the criminal charges—it does not determine the defendant's guilt (that's the job of the petit or trial jury). If the grand jury agrees that charges are warranted, they typically issue what’s called an indictment (in-DITE-ment), and the case goes forward.
A prosecutor might review the case and decide not enough evidence exists to bring the case forward. Or the prosecutor’s supervisor could decide that the prosecution office, as a whole, will focus its resources on certain types of cases (homicide, drug, violent felonies) and not others (fraud, bribery, property crimes). In either case, the decision of the prosecutor or prosecution’s office is usually final.
For the most part, the prosecutor cannot be forced to press charges. In some cases, political or public pressure might sway the prosecutor to file charges. A prosecutor who’s under pressure might bring the case to a grand jury to decide if charges are warranted. While the prosecutor’s decision can’t generally be overruled, so long as the statute of limitations hasn’t expired (discussed below), the prosecutor can change his or her mind and file charges later.
If the suspect is in custody (jail), prosecutors generally must file charges within 48 to 72 hours of the arrest. In other cases (when the suspect isn’t in custody), it could take days, weeks, or months to file charges. Even after charges are filed, the prosecutor can still amend (change) the charges or even drop some or all of the charges.
The ultimate game-stopper is the statute of limitations—a time limit set in statute (determined by legislators) for filing criminal charges. The more severe the crime is, the longer the statute of limitations tends to be and the longer the prosecutor has to file charges. For instance, in many states, there are no time limits for filing charges in a murder case (meaning a prosecutor could file charges even decades after the crime), while the limitations for filing a misdemeanor could be two years or less. Each state has its own set of rules on statutes of limitations.
Once the time limit has expired, the prosecutor can still file the charges, but a defendant can bring a motion to have the charges dismissed. Judges don't have flexibility on this issue—they must dismiss the case.
Let’s say the prosecutor files the charges or the grand jury issues an indictment. The suspect—now defendant—will appear before the judge for a hearing to be notified of the charges being filed and the right to an attorney. If the defendant can’t afford an attorney, the judge might appoint a public defender. The judge will also evaluate the prosecutor’s charges and make a neutral decision on whether the evidence supports the charges. If bail issues remain, the defendant might argue for a lower bail amount or to be released on the promise to appear (O.R. release). At this point, the court will likely set future court dates for pretrial motions and hearings. You can learn more about these hearings and the criminal justice process on our Criminal Law page.
If you’ve been arrested or have been charged with a crime, contact a criminal defense attorney as soon as possible. The criminal justice system is complex and daunting. A lawyer can help you navigate the system, protect your rights, and argue for the best outcome in your case.