This is Dennis Boren, criminal defense attorney, and former felony prosecutor. This post is adapted from a conversation between myself and the man who trained me, Mr. James Farren. After working with me, James Farren went on to serve as a Randall County criminal district attorney for 24 years.

The court system may seem arbitrary and confusing, BUT, there is a step by step process that a prosecutor must follow in order to bring someone to court. This article will outline the three-step process that must be followed for a felony case to arrive in a courtroom, as well as revealing a lot of the subplots that may be encountered along the way.


Step 1: Law Enforcement Gathers Evidence

First of all, the law enforcement authorities conduct their investigation, and that usually involves gathering physical evidence, statements, follow-up interviews, testing, sometimes lab work is required, and sometimes autopsies are involved. At some point, law enforcement officials decide as to whether they believe there is sufficient evidence to believe that a crime occurred and that a case needs to be filed.

If law enforcement believes that the case constitutes a misdemeanor, they will forward it to the District or County attorney.


Step 2: Prosecutor Files a Complaint

The prosecutor’s office acts as a sort of gate keeper. The prosecutor’s office will review the file and the evidence that has been gathered by the police. Sometimes the prosecutor will kick it back to the police to collect more evidence, and occasionally the prosecutor will hire their own investigator to do the follow-up.

If the prosecutor’s office believes there is sufficient evidence, they will file a complaint. A complaint is just a piece of paper that informs the person who is being accused of what it is that the State is accusing them of. If the individual who is being accused hasn’t yet been arrested, then law enforcement will take it to a judge or magistrate, and ask that a warrant be issued.


Probable Cause

The complaint will include what is known as a probable cause paragraph. It is a short summary of the evidence and why the State believes that a crime has occurred, and this person is the one that committed it. If the judge decides that there is sufficient evidence, a warrant will be issued, if the individual hasn’t already been arrested.

Sometimes, people get confused about the Probable Cause“. It doesn’t have anything to do with the search necessarily, but probable cause is required as a safeguard to make it so the prosecutors can’t just go charging people at random. The same is true with a search warrant or an arrest warrant.

The judge has to be convinced that there’s sufficient probable cause, based on the evidence presented, that the accused did indeed commit the crime. In short, probable cause is required in order to issue an arrest warrant instead of a search warrant.

Probable cause does not need to be a lengthy, detailed explanation of the evidence. It is not a trial on paper. It is just a summary that, it is hoped, will convince the magistrate that it is probable that this individual is the one that committed the offense.


Step 3: The Grand Jury

The grand jury is the final gatekeeper. They review the prosecution’s homework. They review the efforts of the law enforcement authorities and the work that has been done on the case. The purpose of the grand jury is to safeguard citizens from law enforcement and the prosecutor’s office. They are there so that the State can’t just decide to prosecute an individual they don’t like without compelling evidence.

In the real world, though, that is not quite how it works in practice. There’s an old adage that if the district attorney brings a ham sandwich into the grand jury, they’ll indict it. That’s not true if the grand jury is being conducted correctly. If it’s been conducted correctly, the prosecutor makes sure that grand jury hears the full story, warts and all, so that the grand jury can make an honest decision about whether or not this case should be indicted.

It’s only with an indictment that a felony can be taken to trial.

Grand jury’s are not trial jury’s. The grand jury is just deciding:

  • Has a crime been committed?
  • Did a given person or persons do it, on the balance of probabilities, or 50/50?

The grand jury does not need to meet the high standard of beyond reasonable doubt that a petit or trial jury would decide. The grand jury’s purpose is to determine, if there is there enough evidence that the accused should be sent into a courtroom and the prosecution given to chance to prove their guilt beyond a reasonable doubt.


Defense Counsel 

There is one last semi-gatekeeper, and that is defense counsel. The prosecutor only knows what they are told. They are not themselves investigating anything, and they don’t have any direct knowledge. So sometimes, the defense counsel has information that can cause the prosecution to re-evaluate their position. If it is early enough, a chat between the defense and the prosecution can change a charging decision or result in a dismissal if the information that the defense shares undermines the prosecutions case.

This works because prosecutors don’t want to waste the court’s time, and they don’t want to prosecute an innocent person. If they can be told in advance, and not be surprised in a courtroom, that it is very unlikely they will get a conviction, or that it is very unlikely the accused committed the crime, then they are very willing to listen.

Trust me, I know.


In Conclusion

I always recommend that if you have any interaction with a police officer, get a record of it.¬† Just turn on your video, or at least your audio app on your phone, and document it. It will save you a lot of grief. I hope this was helpful. We’ll have more from James Farren in the future.


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