If you believe a person has committed a crime against you, the offender will not necessarily be immediately arrested and charged. Police and prosecutors do not arrest and charge someone solely because another person claims that a crime occurred and wants the offender prosecuted. Unless the police observe the crime, they will need to gather evidence and other information to recommend that the prosecutor charge the person with a crime.
The Path of a Typical Arrest
In the most typical scenario, a crime victim contacts the police. The police come to the scene or meet with the victim and ask for information. If the offender is still at the scene and the offense has just occurred, the police may be able to arrest the person immediately, but only if the police have “probable cause” (a reasonable belief that a crime has occurred and the arrestee did it). (See below for more on probable cause.)
In other cases, if the offender is not at the scene, the police will need an arrest warrant, issued by a judge, before they take the person into custody. The police must gather information and evidence and determine whether there is a sufficient basis for an arrest warrant. Again, the question that police must answer is whether there is probable cause to believe a crime was committed and the person accused was the person who committed it.
Determining Probable Cause
When the police believe they have “probable cause,” they are saying that reasonable grounds exist for concluding that a crime occurred and the arrestee committed the crime. The police can consider many kinds of evidence and information in determining whether there is probable cause to arrest someone, including:
- statements of the victim
- statements of witnesses who saw or heard the events
- statements of the person accused of committing the crime
- physical evidence such as a weapon or damage to property at the crime scene
- physical injuries to the victim, and
- video or audio tape of the incident.
This type of evidence, if sufficient to establish probable cause, will support an arrest or a request for an arrest warrant. If the police do not arrest the offender but there is evidence of a misdemeanor or petty crime (less serious offenses than a felony) the police can file a criminal complaint or other charging document in court. This will be mailed to the defendant and requires him to appear in court and answer to the charges.
Grand Jury or Probable Cause/Preliminary Hearing
If the police arrest the person accused, the prosecutor will review the police report and determine whether the government can proceed on the charges. The question for the prosecutor is whether the government can, with the available evidence, prevail at trial. To win at trial, the prosecutor must prove beyond a reasonable doubt that the accused committed the crime. This is a higher standard of proof than mere probable cause.
If the charges are felony crimes, the prosecutor must present the evidence to a grand jury or to a judge in a hearing known as a probable cause or preliminary hearing. (Note that there is also a different kind of "probable cause hearing.") The grand jury or the judge must determine if there is enough evidence to proceed to trial. If so, the grand jury issues an indictment (sometimes called a “true bill”), or the judge issues an “information,” each of which formally bind the defendant over for trial. The test for the judge or grand jury is not proof beyond a reasonable doubt, but whether there is enough evidence to conclude that the defendant most likely or probably committed the crime.
If the charge is for a misdemeanor or petty crime, the prosecutor decides whether to prosecute the case in a lower court where lesser crimes are heard. If the prosecutor decides there is not enough evidence to make a case, the prosecutor can dismiss any charges filed by police or elect not to issue a criminal complaint or charging document.
The Victim’s Role in Prosecution
In determining whether to pursue a case, the prosecutor will consider the victim’s statements and expected level of cooperation. A victim cannot force or require the prosecutor to pursue a case, but the prosecutor is more likely to pursue criminal charges if the victim is cooperative. In some cases, a victim may want to pursue criminal charges but the prosecutor may determine a crime was not committed or that there is not enough evidence to prevail at trial, even with the victim’s testimony. While this can be very frustrating for the victim, the victim does not have the authority to make a final decision about prosecution except in very special circumstances that are explained below.
The unwilling victim
A prosecutor also can decide to pursue a case even if the victim tells the police or the prosecutor that he does not want to press charges. Television and Hollywood movies sometimes create the impression that the victim decides whether to press charges and, therefore, whether the offender will be subject to criminal prosecution. This is not accurate. In a case of domestic violence, for instance, even if the victim tells the police or the prosecutor that he or she does not want to press charges, the prosecutor can still decide to proceed without the victim’s cooperation.
The prosecutor has the power to demand that the victim testify by issuing a subpoena to appear at trial. If the person ignores the subpoena and does not appear or refuses to testify, the judge can issue a bench warrant (like an arrest warrant), hold the victim in contempt and put the person in jail. The only exception to this rule is that the victim can refuse to testify on the grounds that his testimony could incriminate him. The Fifth Amendment of the United States Constitution prohibits the court from forcing a witness to testify if that testimony might show that the witness is guilty of a crime. This is known as a witness’s Fifth Amendment right not to testify.
With the power of a subpoena, the prosecutor usually can compel attendance and testimony, but the value of a reluctant or hostile witness is debatable. The victim might change his testimony at the last minute and claim that he was mistaken or lied previously because he was angry. A skilful and manipulative victim might be able to convince the jury or judge that she was mistaken at the scene or that the police misunderstood her. If a victim is angry and hostile, his attitude might affect the jury’s belief in the case.
Proceeding to trial without the victim
In some cases, the prosecutor can decide to proceed with a trial without the victim’s testimony. Sometimes other evidence in the case, such as eyewitness testimony or physical evidence, establishes the defendant’s guilt. In rare cases, the court will allow the prosecutor to introduce the victim’s earlier, non-sworn statements to the police or others, without having the victim present and subject to cross examination. Most criminal defense attorneys will argue vigorously against the jury or judge hearing the statements, but there are exceptions that might permit the prosecution to present the statements or that might convince the judge to allow the testimony.
Private Criminal Complaints or Charges and Police Prosecutions
Some courts allow private persons to file criminal complaints or charges against others for minor (petty) or misdemeanor crimes, without the police or the prosecutor’s office being involved. For example, a neighbor might file charges against another neighbor for trespassing or simple battery after an argument that becomes physical. State statutes, which are available online and may be available at the local courthouse or library, establish the procedures for filing a private criminal case.
In a private criminal case, the person filing the charges must present evidence to the court, just like a prosecutor would do. In some cases, the prosecutor might decide to intervene once he learns of the charges and the allegations. In such a case, the prosecutor would take over prosecution and the individual will no longer have to proceed on his own or have an attorney present his case.
Police, as well as private persons, can also present evidence and arguments to a court in misdemeanor and petty crime cases, without a prosecutor being involved. Police officers almost always prosecute traffic cases for speeding or other minor traffic infractions. Police officers and animal control officers also can prosecute minor offenses such as trespassing, minor in possession of alcohol, and failure to keep an animal on a leash.
If you believe you have been the victim of a crime but the prosecutor’s office or the police have informed you they will not pursue the case, you can contact an attorney for a consultation about your rights and options. Likewise, if you receive a subpoena to testify in a criminal trial and you have any concerns about testifying, an attorney can advise you of your rights and appear in court with you, if necessary. It is never advisable to ignore correspondence from a prosecutor or district attorney’s office or a subpoena without consulting with an attorney. If you are a criminal defendant, it also is never advisable to ask a witness or victim to “not show up for court.”