Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

February 28, 2011

An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your criminal defense attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made; it is much more difficult to get the State to change their minds.


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