The DA files charges, NOT the police

Here's something that the vast majority of folks don't understand when it comes to criminal prosecution—as a general matter, if you get caught committing a crime, the officers who investigated and arrested you are not directly responsible for the criminal charges you may face in court. Rather it's a prosecutor from your county District Attorney's Office (or a different prosecutorial office) who is ultimately responsible for the decision to file charges.

The Filing of Criminal Charges

Whether to file criminal charges rests alone with the prosecutors of the jurisdiction in which an offense is alleged to have been committed. So that generally means the DA's Office or the City Attorney's Office in some cases and counties. In other words, the decision to file a criminal case and prosecute an individual belongs to neither the law enforcement agencies nor the alleged victims of a crime. Why is this distinction significant? Well, when officers tell you that they can make your charges disappear or minimize your punishment if you talk, they're bullshitting you.

The way it works is that after officers make an arrest, they write reports that get submitted to the DA’s Office. The prosecutors evaluate the reports and decide whether there’s strong enough evidence to support the filing of criminal charges. In other words, just because you were arrested does not necessarily mean a criminal case will result. It’s all within the prosecutor’s discretion. As a former prosecutor, I recall many occasions where I declined to file an officer's submitted case because, most often, I didn't feel he or she provided enough evidence. Or, there were plenty of times where I ended up charging more offenses than the officer recommended because the evidence was there and all too clear. My experience was not uncommon at all. Frequently, the DA will depart from the officer’s recommended charges contained in the report and either charge more or less than what was recommended. The point is the buck doesn't start and stop at the police station; the DA enjoys the final say as to whether to file and prosecute a criminal case.

But I Don't Want to Press Charges - Who Cares?

Along these lines, another matter that most people don't really understand is that it's not up to an alleged crime victim to determine whether a case proceeds. Just because an alleged victim tells the DA not to file charges or to dismiss a case that’s already filed does not mean the case will be closed.

For instance, in domestic violence cases, it all too frequent that an abused victim tells law enforcement as well as the DA that she (or he) does not want to press charges. Or, if charges have already been brought, victims will commonly ask for the charges against their abusers be dropped. They will plead that that nothing happened, that it was all a misunderstanding, etc. Do the victim's request translate to the DA automatically dismissing the case or declining to prosecute? Not at all. The DA looks at (or is supposed to look at) the evidence of the offense. He or she will listen to the recording of the 911 call made by the victim the night of the offense and the recording of interviews conducted by law enforcement, look at pictures (e.g., of broken furniture, any bruising, scratches, etc.), and any other evidence that paints the picture of what truly occurred. If the evidence is ultimately strong enough, it’s entirely proper and indeed mandated for the prosecutor to ignore the victim’s requests and press forward with the case.

So, for the abusers out there who think that they're untouchable as long as their victims don't want to press charges, think again.