Pressing Charges for a Criminal Act

Prosecutors, not victims, generally decide whether to press charges against a suspect. But victims still play an important role in charging decisions.

If you believe a person committed a crime against you, the offender won't necessarily be immediately arrested and charged. Police and prosecutors don't 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.

Unlike what you often see on TV, the decision to "press charges" doesn't rest with the victim; it rests with the prosecutor. But the victim's willingness to testify and cooperate with police and prosecutors can be crucial in the case against the defendant.

The Path of a Typical Arrest

In the typical scenario, a crime victim contacts the police, and the police come to the scene or meet with the victim and ask for information.

If the offender is at the scene and the offense 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.

If the offender isn't at the scene, the police will usually 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 probable cause exists for an arrest warrant.

In other cases, a victim might file a police report alleging that a crime was committed against them. Similar to the above scenario, the police might need additional evidence to obtain an arrest warrant for the suspect.

Determining Probable Cause

Probable cause doesn't have an exact definition. Basically, it means the police believe reasonable grounds exist for concluding that a crime occurred and the accused committed it. The police can consider various types of evidence and information in determining whether probable cause exists to arrest someone, including:

  • statements of the victim or witnesses who saw or heard events
  • statements of the person accused of committing the crime
  • physical evidence, such as a weapon or property damage at the crime scene
  • evidence of physical injuries to the victim, and
  • video or audiotape of the incident.

This evidence—if sufficient to establish probable cause—will support an arrest or a request for an arrest warrant.

If the police don't arrest the offender but have evidence of a misdemeanor or petty crime (less serious offenses than a felony), the police can file a criminal complaint or another charging document in court. This document will be mailed to the defendant and requires the defendant to appear in court and answer the charges. With more serious charges (felonies), the police will send the evidence to the prosecutor.

The Roles of the Prosecutor and Grand Jury

If the police arrest the suspect, the prosecutor will review the police report and determine whether the government can proceed on the charges. The prosecutor must determine whether the government can, with the available evidence, prevail at trial. To win at trial, the prosecutor must prove beyond a reasonable doubt—a standard of proof much higher than probable cause—that the accused committed the crime.

In some states, the prosecutor files criminal charges against the defendant, which must then be reviewed by a judge to decide if the evidence supports the charges. This review hearing is often referred to as a probable cause or preliminary hearing. Other states require the prosecutor to present the evidence to a grand jury, which will decide if enough evidence exists to proceed to trial. If so, the grand jury issues an indictment (in-DITE-ment), which formally charges the accused and starts the criminal trial.

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.

The Unwilling Prosecutor

In some cases, a victim might want to pursue criminal charges but the prosecutor may determine a crime was not committed or that not enough evidence exists to prevail at trial, even with the victim's testimony. While this outcome can be very frustrating for the victim, the victim doesn't have the authority to make a final decision about prosecution (except in very limited circumstances that are explained below).

The Unwilling Victim

A prosecutor can also decide to pursue a case even if the victim asks the police or prosecutor not to. Television and movies sometimes create the impression that the victim decides whether to press charges and, therefore, whether the offender will be subject to criminal prosecution. But this representation isn't accurate. In a case of domestic violence or assault, for instance, even if the victim doesn't want to "press charges," the prosecutor can still decide to proceed without the victim's cooperation.

Prosecutors can use their subpoena power to force a victim to testify. If the person ignores the subpoena and refuses to testify or doesn't appear at trial, the judge can issue a bench warrant (like an arrest warrant). (One exception exists to this subpoena power: A victim can refuse to testify on the grounds that their testimony could incriminate them. The Fifth Amendment to the U.S. Constitution prohibits the court from forcing a witness to testify if that testimony might show that the witness is guilty of a crime.)

While a prosecutor usually can compel attendance and testimony using a subpoena, the value of a reluctant or hostile witness is debatable. Victims might change or recant their testimony at the last minute and claim to have been mistaken. In any event, putting an angry or hostile witness on the stand can backfire and 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. Other evidence in the case, such as eyewitness testimony or physical evidence, might be enough to establish 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.

Private Criminal Complaints and Prosecutions

A few states allow private persons to file criminal complaints or charges against others for minor (petty) or misdemeanor crimes (like trespassing or simple battery) without the police or the prosecutor's office being involved. Similarly, some states allow "private prosecutors" to try criminal cases in certain instances.

But, even in states that allow it, it's rare to see private charging and prosecutions. Courts strictly limit its use out of concerns that private prosecution can turn into a means of revenge. The role of the public prosecutor is to seek justice, not to merely convict. A prosecutor must objectively review the evidence and make other objective decisions that can be difficult for a crime victim to step back and take.

Legal Representation

If you believe you've been the victim of a crime but the prosecutor or police refuse to pursue the case, contact a local attorney for a consultation about your rights and options. Likewise, if you receive a subpoena to testify in a criminal trial and have concerns, an attorney can advise you of your rights and appear in court with you, if necessary. It's never advisable to ignore correspondence from a prosecutor or district attorney's office or a subpoena without consulting with an attorney.

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