By Clayton T. Robertson (Criminal Defense Attorney / Civil Rights Attorney)
What is a "pre-file intervention" in a criminal case? When a client who has been arrested or cited comes to my office prior to the formal filing of a criminal complaint by a prosecutor, they want to know whether there is anything a defense attorney can do to try to avoid the filing of criminal charges. It's ultimately up to a prosecutor (not the named victim) whether to file criminal charges, but the answer is often there are numerous options available to us.
At this point, your attorney should immediately start investigating the case. This includes conducting a full incident and mitigation intake with you. A "mitigation intake" includes obtaining information about your background, including details that reflect positively on your character and reputation. An "incident intake" includes obtaining necessary information regarding the criminal allegations. The goal is to send a "pre-file intervention packet" to the prosecutor's office -- which contains both mitigation and incident details -- to try to convince the district attorney not to file charges or to file less serious charges (such as a misdemeanor rather than a felony).
As it concerns a pre-file investigation of the allegations, we need to start immediately to be most effective. Delays may result in the loss of potentially helpful evidence. Once hired, I get my investigators involved at the outset. This includes, among other possibilities, conducting a scene inspection, canvassing the area, locating and interviewing potential witnesses, locking down helpful testimony, reviewing social media, collecting text messages or direct messages, reviewing photographs/videos, obtaining surveillance videos, sending out evidence preservation letters, conducting voluntary discovery with third parties, locating public records, and collecting other case-specific forms of evidence. Of course, it goes without saying that every case is different.
The defense team may also potentially interact with law enforcement, depending on the case, to assess the agency's status and whether they are recommending charges to be filed. There are times when we may also decide to send law enforcement evidence that demonstrates you are not criminally culpable for the alleged conduct. These are important case-by-case decisions. When later sending the pre-file packet to the prosecutor, we also make difficult choices about the most effective ways to convince them not to file a criminal complaint, including the production of both mitigation-related and incident-related details as part of the pre-file letter.
When a potential client calls me after their arrest during this pre-file stage, I am often asked whether it is beneficial to hire an attorney. In this blog, I cannot provide you legal advice about your case without talking with you, but my experience is that many cases benefit from an attorney's early involvement. Moreover, this pre-file investigative process typically helps us to develop possible defenses to any charges in the event they are filed, including early assessments about potential motions.
