By: Attorney Alex Merritt, DeWoskin Law Firm, LLC
In my initial consult with clients, they often tell me they have been “charged” with a crime; however, I have found many people don’t understand what that truly means. Misunderstanding the mechanics of how the State brings formal criminal charges can be devastating to people who find themselves being summoned to court or even arrested – perhaps for a second time – for alleged crimes they thought were already dismissed or disposed of in some other way.
In most cases, citizens are arrested while in the act of committing an alleged crime. In some cases, however, people are arrested well after the alleged crime has been committed. For example, an employer may find his or her store’s cash register is short on money, and subsequently review in-store video to determine if any employees have been stealing money from the till. If the evidence is incriminating enough, a detective could take out an arrest warrant for the suspected thief without ever reaching out to the suspect. In this hypothetical, a person could be arrested without even knowing he or she was suspected of a crime.
But what happens next? Many people don’t fully understand the process as it plays out post-arrest, including the possibility of having charges dismissed by completing a pretrial diversion program.
Once a person is arrested, the case goes to the prosecuting attorney’s office. At this point, the prosecuting attorney will review the evidence and determine whether or not to file formal charges. Depending on the situation, the official charging document is in the form of what is called either an “accusation” or an “indictment.”
If you are charged under an indictment, then you have been charged with a felony. If you are charged under an accusation, then you have been charged either with a misdemeanor or with what is considered to be one of the less serious felonies. In Georgia, a prosecutor can file an accusation just by signing and filing the document. On the other hand, an indictment must be reviewed and approved by a grand jury after it hears evidence presented under oath.
If an accusation or indictment has been filed against you, then you have been formally charged by the State with a crime. At this point, your case will work its way through the legal system via a series of hearings and, ultimately, a trial if the case does not resolve before then.
In addition to asking the grand jury to approve the indictment, the State could also ask the grand jury to issue a warrant for your arrest without telling the members of the grand jury that you have already been arrested once for this same alleged crime.
— Alex Merritt
But let’s go back to the period of time immediately following an arrest. This is where things can get tricky. It is common for people to be arrested and not be able to bond out of jail. When this happens, the person will simply remain incarcerated while the prosecuting attorney’s office investigates the case to determine whether or not to bring formal charges. This process can take weeks, months or even years, depending on the crime and jurisdiction.
If you are incarcerated and formal charges have not been filed by the prosecutor, you are entitled to a probable cause hearing. These hearings are usually held within a few days or weeks from the date of arrest. The hearing is in front of a neutral judge, who must determine whether or not the State actually had probable cause to arrest you. Although the burden of proof is very low at these hearings, making them fairly easy for the State to win, occasionally the State will not have adequate proof to meet its burden. If this happens, the arrest warrant is dismissed and the defendant is released from jail.
But – and this is where people get in trouble – the case is not over. Many people think if they win that hearing and are released from jail that the case is over. Not true: The case still goes to the prosecuting attorney’s office. The prosecuting attorney still reviews the evidence, and can still file formal charges in the form of an accusation or indictment as laid out above.
Let’s continue to use the hypothetical in which the State failed to meet its burden of proof at the probable cause hearing. After that hearing, the defendant would have been released from jail. But perhaps the State continues investigating and finds more evidence several days, weeks or months after the probable cause hearing was held, and this new evidence convinces the State to bring formal charges. When this happens, the prosecutor will file the charging document (again, either an accusation or an indictment) and, at best, you will receive a notice in the mail requiring that you come to court to answer these criminal charges.
Notice that in the last sentence, I wrote “at best.” There are a number of much worse options. For example, if the State wants to charge you with a felony after your “charges” were dismissed at the probable cause hearing, the State must do so using an indictment, which means the State must present the case to a grand jury as I explained above. In addition to asking the grand jury to approve the indictment, the State could also ask the grand jury to issue a warrant for your arrest without telling the members of the grand jury that you have already been arrested once for this same alleged crime. If the grand jury approves the indictment and the arrest warrant, then you will once again have a warrant out for your arrest for the same exact alleged crime for which you have already been arrested and for which you have already had a warrant dismissed at a formal hearing in front of a neutral judge. You won’t know the new warrant is out for your arrest until you’re being arrested, again. A second time for the same crime.
This is just one complication that makes it imperative for you to hire an experienced criminal defense attorney if you have been arrested, or reasonably believe you could be arrested for a crime. Call the DeWoskin Law Firm at 404-987-0026 and ask for me, Alex Merritt, or email me directly at firstname.lastname@example.org.
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