There is a period in almost every criminal case that most people do not know exists. It falls between the time the police get involved and the time a prosecutor decides whether to file charges. This is the pre-filing period of a criminal case and it is during this window that often determines whether a person faces a criminal case at all. You may be inside that window right now. Perhaps you were arrested, bailed out, and are holding paperwork with a court date weeks away. Perhaps a detective called and said the police "just have a few questions" and asked you to come in. Or perhaps no one official has contacted you yet, but someone is threatening to go to the police such as an employer who suspects misconduct, a business partner, or another person making an accusation. In each of these situations the question is the same. Can charges be prevented from ever being filed? The answer is that often, yes it is possible. This article explains how the filing decision actually works, what you should not do while it is pending, and the work an attorney can do during this window to prevent a criminal case from being filed in California.
Who Actually Decides Whether Criminal Charges Are Filed?
Police officers investigate alleged crimes, interview witnesses, collect evidence, write police reports, and in many cases detain and arrest criminal suspects. What they do not do is file criminal charges in court. When their investigation is complete, they send their reports to the district attorney's office, and a prosecutor decides what charges to file, if any. The prosecutor has discretion in making this filing decision. There is no rule requiring a criminal filing just because an arrest was made or a police report was written. The window between the police investigation and the prosecutor's decision typically runs from a couple of weeks to a couple of months and it generally takes two forms.
- After An Arrest If you were arrested and bailed out, your release paperwork will provide a promise to appear court date which, in most Bay Area counties, will be roughly two weeks to two months out. During that time the prosecutor (the county district attorney’s office) reviews the police report and decides what, if any, criminal charges to file against you. It is during this period when you should retain an attorney who can present mitigation evidence to the prosecutor to convince them not to file any criminal charges against you (discussed below).
- Without Any Arrest Many cases, especially white-collar cases and cases that begin with a delayed accusation, are investigated without an arrest ever occurring. The police complete their investigation, submit it to the prosecutor, and the prosecutor can file a criminal complaint by warrant application. A person can go from "the police want to talk to you" to a filed felony case without ever being handcuffed. The pre-filing period window exists in these cases too, and it is often longer as there is no court date following arrest that you were ordered to appear at
Either way, the filing decision is the critical point and it is the last point at which a case can end before it begins and is brought to court.
Should You Talk To The Police Before Hiring A Lawyer?
A simple rule that is applicable in virtually all situations: do not communicate with law enforcement. Since it is difficult to know whether you are (or may become) the subject of a criminal investigation, you are well advised to not communicate with law enforcement under any circumstances as anything you say can and will be used against you. Do not go in to the police station to just "answer a few questions." Do not explain, clarify, or give your side, no matter how innocent you are or how unfair the accusation is. Tell them if you are required to communicate anything at all, politely, that your attorney will communicate with them, and then say nothing more. The detective's phone call deserves particular attention because it is where so many cases are lost. A phone call from a police officer intuitively may sound harmless, especially if you believe you are innocent. However, by the time law enforcement seeks to communicate with you, the criminal investigation against you is usually well underway, and the purpose of the interview is to gain incriminating information against you. Innocent people talk themselves into criminal charges every day because they guess at details and get them wrong, they make small inconsistent statements that later read as lies, they confirm facts the police could not otherwise prove, and they give poor sounding answers to questions posed by skilled interrogators. An additional phone call that you should be on the lookout for when you might be under criminal investigation: the “pretext call” from an alleged victim or other witness. This is when law enforcement asks that an alleged victim or other involved witness in an investigation call you on a recorded phone call in order to get you to confess to a crime that you believe is a private phone call between you and the other party. This call often is the nail in the coffin in an otherwise weak criminal case so be very careful who you speak to. The same discipline applies to you proactively contacting anyone related to any potential crime. Do not contact the accuser and do not reach out to witnesses to explain or to ask them to clarify what they saw. Contact with witnesses, however well intentioned, can be interpreted as an attempt to influence them, and pressuring a witness to change or withhold an account is itself a crime under California Penal Code section 136.1. Witness interviews are your attorney's job to conduct, done through proper channels. Your job is simply to remain silent, while communicating only with your attorney during this period.
What Does A Criminal Defense Attorney Do During The Pre-Filing Period?
While you remain silent, your attorney goes to work to try to prevent the case from being filed. The objective is a mitigation package: an organized presentation delivered to the prosecutor before the filing decision is made which should include every reason not to file. It has three components, though not every case uses all three. The package is built for the specific allegation, and judgment about what belongs in it is part of the defense.
- Evidence that no crime occurred, or that a far less serious one did This comes from a genuine reinvestigation of the alleged crime. The attorney and a professional investigator locate and interview witnesses the police missed or rushed, gather records the police never requested, reconstruct timelines, and where appropriate consult experts. Police investigations in this window are often one-sided by design and often overlook key facts. The reinvestigation supplies the other side during this critical pre-filing period. Sometimes the result shows the conduct was not criminal at all. Sometimes it shows that a case booked as a felony is at most a misdemeanor. Either way, a thorough reinvestigation is done to obtain the best possible outcome before the case is filed.
- Pre-Incident Mitigation Evidence Evidence of what kind of person the criminal suspect was before the alleged crime, is an important component of the mitigation packet as the police report will only contain evidence of what allegedly bad acts the person engaged in on the day of the incident but contain nothing about that person’s past. Character references, steady employment, community involvement, and the absence of any prior criminal record are all documented for the prosecutor to see the whole individual. A police report is a snapshot taken on the worst day of someone's life so the pre-mitigation evidence gives the prosecutor the rest of the picture, and prosecutors do consider it.
- Post-Incident Mitigation Evidence In certain criminal cases, it is helpful to highlight what the individual has done since the alleged criminal incident. This can include voluntarily undertaking counseling or classes after the incident. This is not an admission of anything criminal as having occurred. What it shows is how serious this individual is taking the alleged crime and demonstrating that there is a substantially reduced chance that this individual would ever be accused of similar allegation in the future. The likelihood of any future criminal issue matters greatly to a prosecutor deciding whether the public interest requires the filing case. Thus, in a marginal case, where the prosecutor views the evidence as borderline, documented proactive steps let the prosecutor close the matter with confidence by not filing the case.
Assembled, organized, and delivered to the prosecutor at the right time, the mitigation package does something the accused person cannot do alone and must never attempt; it communicates to the prosecutor before a criminal filing decision is made.
Two Cases From Vijay Law That Resolved Without A Criminal Filing
At Vijay Law we often represent individuals either just arrested with a future court date or in the process of facing a criminal investigation from law enforcement. Below is a description of two different recent cases handled by our firm that were handled at the pre-filing stage.
Case 1: Tech Company Allegation – No Charges Filed
Our client in this case was a senior manager at a Bay Area technology company, an immigrant from India holding a green card, with no prior criminal record whatsoever. His company came to believe he had arranged for it to pay a vendor company in India for services that were never performed, and that he secretly held an ownership interest in that vendor company. They called him into a meeting, told him what they believed, and asked for an explanation. Our client denied wrongdoing, did acknowledge the undisclosed ownership
interest, but claimed that the services had been provided. The company placed him on administrative leave, cut off his access to any company services, and told him they might refer the matter to law enforcement. Right after this meeting with his company, he hired Vijay Law and we began working on the case. Unfortunately, within only a couple of days, the company fired him and reported the matter to law enforcement. However, we were able to do something that is usually not possible which was to intervene in the investigation while it was just opening up. I contacted the company and told them we would be providing evidence of a substantial misunderstanding, which included clear documentation that no crime occurred. I contacted law enforcement and told them we had information to offer before their report was finalized, and they were willing to receive it in a supplemental report. That opportunity to interact with law enforcement exists only rarely if it occurs while the law enforcement investigation is still ongoing. In most cases, by the time a lawyer is hired, the investigation is finished and there is only interaction with the prosecutor’s office to attempt to keep the case from being filed. Our investigation assembled the financial and company records that told the fuller story. When we presented the findings to the company, they concluded that a substantial part of our account was accurate. They still believed our client had acted improperly, and an undisclosed interest in a vendor can be a genuine employment problem without being a crime. However, the criminal question was different in that it turned on an intent to defraud, whether the services were real, and whether he had improperly obtained company money. On that question, the company itself contacted law enforcement and said it no longer had any interest in a criminal case. Our findings and the company’s changed position on the potential criminal case went in the police report. The matter then went to the prosecutor with our full mitigation package, and no charges were filed.
Case 2: Sexual Assault Allegation – No Arrest, No Charges Filed
A second, more serious case, was recently handled by Vijay Law that involved an allegation of sexual assault. Sexual assault is real and devastating and the system prosecutes it very strongly. However, false accusations are made and successfully exposing a false accusation requires thorough (and early) preparation. In this case, our client met a woman on a well-known dating app. They messaged on the app, then messaged via text and WhatsApp, then began communicating by phone. They then met and had a first date. Then a second date was agreed to where they went to a restaurant had a glass of wine and afterward went to my client’s house where they had sex. The next morning, he had an early commitment, arranged a rideshare for her, and she left. By his account the evening had gone well and neither was intoxicated when they returned to his home. He was busy that day and did not text, and over the following days he realized he did not want to continue seeing her and simply never communicated with her. He heard nothing from her either. Then a couple weeks later a police detective called him. The police had "some questions" about her and asked him to come to the station the next day which he agreed to do. He then hired us and we told him there would be no interview, contacted the police to confirm he was represented, and asked what the case was about. The police would not say, which is typical at this stage of a law enforcement investigation, information often flows only in one direction
and what they wanted from us was a statement from my client which would not happen. We knew the report would be completed and sent to the district attorney's sex crimes unit for a filing decision, so we used that window to investigate.
We secured the complete message history across the app, text, and WhatsApp. Some of the WhatsApp exchanges before the second date were explicit including graphic photos, and they generally showed two adults each anticipating what the evening might become. We obtained the credit card receipts from the restaurant, which fixed the timeline of the evening and showed how much alcohol had been ordered. We gathered evidence of our client's character and record. Then we presented all of it to the district attorney's office. Our mitigation package mattered greatly as the explicit messages had been deleted from the accuser's phone before she went to the police, and their recovery from our client's devices told a different story about the evening than the one she reported. Her account described substantial intoxication but the restaurant bill contradicted this. The district attorney declined to file any criminal charges after reviewing this, our client was never arrested, and no case was ever filed. These cases were very different from one another but both involved the same prefiling window. In one, early action let us reach a law enforcement investigation while it was still open. In the other one, the police would tell us nothing, and the work was done entirely on our side and delivered straight to the prosecutor. What the cases share is that the person accused said nothing, the attorney did the communicating, and the filing decision was made with the full evidentiary picture in front of the prosecutor.
Why Timing Matters In A Criminal Investigation
What kind of strategy to take during the prefiling period of a criminal case depends on the timing and nature of the case. The attorney can always communicate with law enforcement and the prosecutor on a client's behalf but what varies is whether the communication can still accomplish anything which is based on timing. If you hire an attorney while a law enforcement investigation is still open, as our first client did, and there may still be a police report to add to, witnesses to reach first, and an employer or complaining party whose position can change. If you hire an attorney after the report is written, and the pre-filing work is limited to the mitigation package that can be sent to the prosecutor. If you hire an attorney after criminal charges are filed in court and prevention of the case is not possible and now the long criminal court process starts. Thus the best time to call a lawyer is the day you learn anyone is investigating or threatening to report you, not the day before your court date. Finally, one more difference in type of criminal case is worth understanding. Who the prosecutor listens to varies by the kind of case. In a domestic violence case, the alleged victim's wish to drop the matter does not control as prosecutors routinely proceed anyway, as we explain in our article on preventing domestic violence charges. Whereas in other potential criminal cases, the alleged victim’s position on a case matters a great deal.
What Is At Stake
A filed criminal case has a life of its own, often a long life. Even a case that is later dismissed leaves an arrest and a court record that can surface in some background checks. A conviction can cost a professional license, a security clearance, a job, and for non-citizens their ability to legally remain in the country. Many of our clients are immigrants, and for each of them a filed criminal case causes many potential problems, even if that case is later dismissed. We cover that subject fully in our article on avoiding deportation in a criminal case. From a defense perspective, there is no better outcome than preventing a criminal case from being filed.
Frequently Asked Questions About The Pre-Filing Period
How Long Does The Prosecutor Have To Decide Whether To File?
The practical review window after an arrest is usually weeks to a couple of months as you were likely given a promise to appear for a certain date, but the technical legal deadline is the statute of limitations, generally one year for most misdemeanors and three years or more for felonies. One caveat is that a "no filing" decision today is not always permanent, which is one reason the mitigation package aims to entirely resolve the prosecutor's view of the case and not merely delay it. If The Police Want To talk To Me, Doesn't Refusing Make Me Look Guilty? No. Declining an interview is the exercise of a constitutional right to remain silent. All competent attorneys will advise any client to remain silent in the face of questions from law enforcement. Prosecutors understand this and cases are filed on evidence, not on whether someone agreed to be questioned. A law enforcement interview can only add to the evidence against you; it can’t help you, and you are well advised not to partake in it.
Can Criminal Charges Be Prevented Even After An Arrest?
Yes. An arrest is a police decision after they determine there is probable cause to arrest you. A criminal court filing is a prosecutor's decision. The window between the two – the pre-iling period – is exactly where the mitigation package operates, as our articles on preventing domestic violence charges and child abuse charges show in detail.
The Accuser Says They Will "Drop The Charges." Does That End It?
No. Private individuals do not file or drop criminal charges, prosecutors do. An accuser's changed account can matter, obtained properly through counsel, but the decision to file a criminal case or not belongs to the district attorney.
What To Do If You Are Under Investigation For A Criminal Case?
Whether you have been arrested, received a detective's phone call, or been threatened with a report to the police, the situation in that you are facing a potential criminal case. The criminal filing decision has not yet been made which gives you a window of opportunity. The decision to file belongs to the prosecutor who very likely doesn’t have access to all the evidence, including your side of the story presented by an attorney. You are well advised to speak to a qualified attorney to try to keep your case from being filed.
This article provides general information about California law and is not legal advice. Every case is different and turns on its own facts. If you are under criminal investigation or have been arrested, do not speak with law enforcement before consulting a qualified criminal defense attorney.