Articles Posted in Negotiating Charges

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.
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