Being Arrested is Different from Being Formally Charged

In Pensacola, as elsewhere in Florida, once a law enforcement agency arrests a person the paperwork is then forwarded to the State Attorney’s Office (prosecutor’s office) to determine what formal charges should actually be filed. An arrest by the police is not a “formal charge,” it is merely an arrest based upon probable cause determined by the individual police officer. Formal charges are decided by and formally filed by the prosecutor’s office.

Florida Prosecutors’ Offices, including Pensacola and the First Judicial Circuit, which encompasses Milton, Ft. Walton, Shalimar, Crestview and Destin, often file criminal charges without having the time to conduct a thorough investigation of the facts of a case. This is not uncommon; most prosecutors offices throughout Florida have a tremendous volume of cases and don’t have unlimited investigatory resources. This requires them to rely on law enforcement agencies who’s investigators are sometimes merely interested in clearing an arrest. All it takes for an arrest is “probable cause.” “He said, she said” is enough to get a person arrested even for the most serious of charges. A case that addresses what obligations an investigating officer has to make a probable cause determination is City Of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2 DCA 2005). After the paperwork from the investigating officer reaches the prosecutor’s office, the prosecutor in some cases will subpoena the complaining witness come to their office to provide a statement to them. If the statement appears to be credible, they will file formal charges. Sometimes these decisions are made without knowing all the facts of the case or the motivations of the witness who provided them a statement. The State simply doesn’t have the resources to investigate charges at a deeper level. Unfortunately, this procedure sometimes results in innocent people being subjected to the stressors and expenses of being a defendant in a criminal case and perhaps even going through the frightening experience of a jury trial where the fate of their lives rests in the hands of other people: a group of six or twelve strangers called a jury.

I believe it is often necessary for a defense attorney to attempt to educate the prosecutor about facts not known to them in an attempt to not to file formal charges based upon what law enforcement has arrested an individual for. However, an attorney must be careful not to advocate facts without being very confident of what those facts are; to do so the attorney runs the risk of losing all credibility with the prosecutor. The cases in which the defense attorney contacts the State to negotiate prior to the filing of formal charges must be limited to those where the defense attorney knows the facts. I do not call the prosecutor prior to formal charges being filed on certain cases. However, not to attempt to negotiate with the State on the right case would not be doing everything possible for the client.

On the flip side of this equation, by educating the proseuctor about all the facts of your case, you are divulging your potential defenses. I think the decision to attempt to persuade them not to file charges by divulging your case versus not attempting to persuade them to file charges must be carefully balanced on a case by case basis. I usually err on the side of educating the prosecutor about the facts especially if it is facutal information that will be dislosed eventually and if it is the truth.

The prosecutor often doesn’t get the full story from the investigator who often is hell bent on making his or her arrest based on probable cause only. I recently met with a detective prior to the arrest of my client and provided him with several hours worth of reading materials —- objective evidence that the investigator should have reviewed and factored into his probable cause determination. (Transcripts from prior proceedings involving a civil matter that cast doubt on the accusers story; polygraph test of my client; witness statements favorable to my client that I had obtained) The prosecutor just received the paperwork from the investigator and, of course, it did not include any of the documents I had given him, including the fact my client had taking a polygraph showing he did not commit the crime, nor any reference to the additional information in his arrest report. The invesitgator in this case obviously ignored everything I had provided him and didn’t feel it necessary to even provide these important documents to the person that was ultimately responsbile for making the formal chaging decision, the prosecutor. This is just an example of how sometimes the prosecutor doesn’t get all the facts, even when law enforcement has the additional information in their possession. It is the defense attorney’s job to decide whether to educate the prosecutor. In this case, just the fact that this particular client has passed a polygraph by a preeminent polygraphist may make the prosecutor question the viability of his or her case; thus the education process begins. Diligent defense attorneys do not pass up any opportunity to see that justice is done for their clients. Educating the prosecutor and/or the investigating officer about the truth may be necessary. Sometimes it falls on deaf ears; sometimes it results in your client avoiding being prosecuted entirely.