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How a Prosecutor Decides When to File a Charge

Posted by Dan Cogdell | Nov 10, 2015 | 0 Comments

The standards that police use to arrest someone for a crime are different than those a prosecutor must consider before charging an individual with a crime. The police must only have a good reason — known as probable cause — to believe someone has committed a crime. Before taking a case to trial, a prosecutor must believe they can prove a suspect is guilty beyond a reasonable doubt.

Prosecutors do have discretion when deciding whether to file charges or what exact charges to file. They look at all circumstances of a case, including any prior arrests or convictions, before deciding how to proceed. A prosecutor may file a number of charges or charges that are less severe, depending on those circumstances. Sometimes a prosecutor may decide not to file at all.

Generally, prosecutors base their decisions on whether or not to file charges on the information they receive from the police. Typically, the key piece of information is the arrest report, which details all the events that led to an arrest and the details of the alleged crime, including victim and witness statements. An arrest report can not only help prosecutors decide what charges to file, it can also help determine bail or whether to plea bargain.

Since most head prosecutors are elected officials, politics can also play a role in determining what charges are filed. It is not unusual for charging decisions to be influenced by public opinion or vocal support groups. No prosecutor wants to be viewed as being “soft” on crime, especially if an election is imminent, but they also realize the realities of the criminal justice system and may be willing to strike a deal if the facts of the case are weak.

Having an experienced criminal defense attorney who knows how prosecutors operate is crucial to a successful defense. Only these professionals know how to work with — or around — the many pressure points prosecutors consider when making the decision to prosecute someone for a crime.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or [email protected]

About the Author

Dan Cogdell

Principal & Founder Principal and founding attorney at Cogdell Law Firm, Dan Cogdell, is often referred to by his contemporaries as a “Texas trial legend.” He has been practicing criminal defense law for 36 years, during which time he has handled some of the most complex and high-profile cases i...


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