Pre-File Investigations

By Clayton T. Robertson (RobertsonLitigation.com) (Criminal Defense Attorney)

When you have been accused or arrested of a crime, but not yet formally charged in a criminal complaint, this intervening period can be a critical part of a criminal case. During this period, particularly in serious cases, it is often critical to have the assistance of counsel to act on your behalf, either to prevent the filing of criminal charges or to obtain the evidence you need to eventually fight your case as effectively as possible.

First, if you are suspected of committing a criminal offense, when an officer or detective comes knocking on your door to interview you, it's not a good sign. They are not speaking with you to clear your name; they are interviewing you to collect information to use against you. One reason for hiring an attorney to act as an intermediary is when you speak to an officer or detective, everything you say is considered a "party admission." This means it can be used against you at court. However, what your attorney tells an officer or detective (or, later, a prosecutor) is not considered a party admission in state court, which means it's not a statement that can be introduced against you (at trial or otherwise). This, in a nutshell, is why an attorney can more effectively "negotiate" with an officer or prosecutor than you.

Second, your attorney's investigator can start interviewing witnesses who can support your version of events. Your attorney can also start collecting information on the person accusing you of a crime to cast doubt on their credibility. Your defense team can also start collecting and reviewing other potential evidence. In one case, we issued a "notice to preserve evidence" of video surveillance footage beneficial to our client. In another case, we searched social media to locate crucial information posted by other witnesses. We also identified other potential witnesses. The facts collected at this stage can also inform your attorney about other important issues, such as whether the police engaged in any form of misconduct in your case, which could later form the basis for a motion to suppress evidence (or other types of motions). In particularly serious cases, your attorney might also consult with an expert on case-critical issues during the pre-file investigation process.

Third, your attorney may decide to contact the lead investigator or detective depending on the circumstances of the case. Your attorney will inform the detective that you are presently represented, so they should not contact you directly. Your attorney might also mention that, in the event of a possible arrest, the detective should call your attorney for a peaceful surrender (rather than an embarrassing arrest at home, work, or elsewhere). These communications with the detective may also provide information about where the case is headed and could help guide your attorney's strategy depending on the detective's willingness to share case details. (Depending on the situation, a detective might be reluctant to discuss the specific details of a case currently under "active investigation." However, even tight-lipped detectives sometimes inadvertently give clues as to the status of their investigation.) These types of communications might also give you some peace of mind so you are not completely in the dark about what's happening. On some occasions, your attorney might also direct the officer or detective to information that supports your version of events. This is all handled on a case-by-case basis, and only an experienced criminal defense attorney knows how to navigate these complex issues. Let me be clear: You should NOT contact an officer or detective directly. This is exactly why you need to hire an attorney to advocate on your behalf.

Finally, in the event law enforcement forwards your case to the prosecutor for the filing of criminal charges, your attorney may also contact the prosecutor before a criminal complaint is filed. This typically is the end-stage of your attorney's pre-file investigation process. If your attorney has gathered evidence supporting your version of events or discovered flaws in how law enforcement conducted its investigation or other issues, they may meet (or set up a conference call) with the prosecutor to discuss the merits of the case and whether it should be filed. This means your attorney may ask the prosecutor whether they intend to file the case and, if so, request such a meeting prior to a case filing. Your attorney might also prepare a written memorandum or letter to the prosecutor outlining key issues to be discussed. In other situations, your attorney might provide investigative reports (witness interviews, etc.) to the prosecutor to help push them into a no-file decision. Again, this is all handled on a case-by-case basis. As with everything else, your attorney will have more details about all of these issues.

The end result is the prosecutor may decide not to file criminal charges, or they could file charges less serious than originally contemplated. Of course, the prosecutor may decide to file the charges originally recommended by law enforcement (or the prosecutor could send the case back to law enforcement for "further investigation"). Only an experienced criminal defense attorney will know how best to handle these various scenarios. In any event, if a criminal complaint is filed against you, your attorney is now armed with the information and evidence collected as part of the pre-file investigation process to better fight your case.