The Charging Process

You may retain your own private attorney at any time. It is best to retain an attorney who routinely handles criminal investigations and prosecutions when you first learn that there may be an investigation. An attorney can advocate your position to the investigating agency and/or prosecutor in an attempt to avoid charges altogether. Unfortunately, you are not entitled to a public defender or appointed counsel until formal charges are brought against you. A private attorney can best represent you during the charging decision process.

It is a common mistake to believe that private citizens (victims) have the power to “press” or “drop” charges. Only the prosecuting attorney’s office has the power to bring criminal charges.

The police do not file charges. In fact, the charges on which a person is booked by the police are not necessarily the charges that will ultimately be charged by the prosecutor.

Although a “victim” can not drop charges, they can (and often do) influence the prosecutor’s decisions. Direct contact with a person thought of as a victim by the prosecutor can be dangerous and is often not advised. If you have any questions about this, call an attorney.

In a felony case, the client typically retains an attorney to represent them initially through the ‘preliminary hearing’ stage of the proceedings. If the client is held to answer in Superior Court, a separate retainer agreement is typically negotiated.

After formal criminal charges have been brought against the defendant through an information or an indictment, he or she appears before the court. A defendant on pretrial release must come to court as ordered. If the defendant is in pretrial detention, jail officers will bring him or her to court. If a defendant has not yet been arrested or detained or fails to appear, the judge issues an arrest warrant if that person is not already in custody. A police officer locates the suspect and places him or her under formal arrest.

The defendant will then have a first appearance in court. At this hearing, the defendant is usually represented by an attorney or the judge appoints one. During this brief appearance, a judge will explain the defendant’s rights and the charges in the complaint. The purpose of the first judicial appearance is to ensure that the defendant is informed of the charges and made aware of his or her legal rights.