Posted on June 4, 2021 in Criminal Defense
So, you’ve been contacted by police – perhaps they asked you down to the police station, or maybe they just called you on the phone. Whether you have any idea why they’re contacting you or not, it is essential to talk to an experienced criminal defense attorney immediately.
In this post, we’ll discuss the investigation and charging process and highlight how important it is to secure diligent and effective representation at the earliest possible opportunity! For more information on hiring a defense attorney early, a free initial consultation is your next best step. Contact AZ Defenders to get the information and help you are seeking by calling (480) 456-6400 today.
When police suspect a felony has been committed, they conduct an investigation. They will interview potential witnesses, gather evidence, and even sometimes try to interview the suspect. After the investigation, police may do one of two things: police may arrest the suspect, or police may submit the investigation to a prosecutorial agency for a charging decision.
A prosecutor must charge an individual who has been arrested for a crime and held in jail within 48 hours. If the individual is not charged within 48 hours, they must be released from custody. This does not mean that charges will not be filed – it simply means that charges weren’t filed within 48 hours. Often, this is due to either a backlog at the prosecutor’s office or the prosecutor needs more information to make a charging decision.
The other option, other than arrest, is for law enforcement to submit the results of their investigation to a prosecutor for a charging decision. These are called “out of custody” cases or “basket” cases because the suspect is out of custody, and the file goes into a “basket” of cases awaiting review. Eventually, a prosecutor will review the case, who will determine if there is sufficient evidence to proceed with the charges.
At this point, the prosecutor has one of two options for formally charging an individual. The first option is to file what is called “information” in the Superior Court. The matter then gets set for a “preliminary hearing.” A preliminary hearing is required for the State to prove that probable cause exists to believe that both a crime has been committed and the individual accused has been convicted of that crime. A defendant facing a preliminary hearing is entitled to have an attorney present, cross-examine witnesses, and present evidence and witnesses.
However, preliminary hearings are relatively uncommon. Typically, a prosecutor will elect to proceed to a grand jury.
A grand jury is the most common way for prosecutors to obtain felony charges against an individual for various reasons. First, a grand jury is a “secret” proceeding – it takes place in a secret location with anywhere between 12 and 18 citizens. Other than the grand jurors, the only people present are the prosecuting attorney and the law enforcement officer who conducted the investigation. An accused individual is generally not allowed to be present, nor is their permitted counsel present. Grand jury proceedings are usually confidential until charges are approved and formally filed.
A grand jury, a prosecutor, will present the evidence collected by law enforcement. Grand jurors may ask questions of the witness or legal questions of the prosecutor. After deliberation, the grand jury may decide to return a “true bill” – or a formal indictment of the suspect, accusing them of committing a felony or felonies within the State of Arizona. The standard for an indictment is probable cause – a relatively low standard.
This is a great question. Unlike many other jurisdictions, Arizona law requires the prosecuting attorney to present any exculpatory evidence to the Grand Jury. Additionally, suppose a suspect wish to do so. In that case, the prosecuting attorney must inform the grand jury that the suspect would like to present evidence. The grand jury can decide whether or not to hear from the suspect or to review their evidence?
Simple! It’s evidence that tends to show the accused is not guilty of the offense or offenses for which the prosecutor is seeking an indictment. This can be anything from an alibi to justification.
Let’s use an aggravated assault, for example. If there is evidence that the defendant was justified in using force – say, they reasonably feared for their life – the prosecutor must present that evidence to the Grand Jury.
Suppose a prosecutor has to present exculpatory evidence to a grand jury. What good can an experienced criminal defense attorney do in the pre-charging phase? The answer is a lot!
First, a prosecutor presenting a case to a grand jury is limited to presenting what evidence is submitted by law enforcement. By the time they’ve decided to take the matter to a grand jury, they’ve already reviewed any “clearly exculpatory evidence” law enforcement may have gathered (though many times, police conveniently forget to collect or document such evidence). They’ve already decided that there is probable cause to believe the suspect committed the crime alleged. And there is no requirement that the prosecutor presents this evidence in a particularly compelling way.
Let’s use an aggravated assault, for example – a Defendant who shot an individual due to reasonably fearing for their life or the life of others. After being interviewed, the defendant stated that he was in fear for his life. To satisfy Arizona law, a prosecutor needs to tack on – usually at the end – a simple sentence of “and the Defendant stated he feared for his life.” That’s not very compelling and doesn’t accurately paint the picture of why the defendant feared for his life.
The defendant in our above scenario may be much better off by securing diligent and experienced criminal representation during the pre-charging/investigation stage! The first step towards a better result is through the filing of a Trebus letter. This document gets its name from a famous Arizona case that created the prosecutor’s duty to present exculpatory evidence.
A Trebus letter is a letter to the prosecutor that sets forth the exculpatory evidence a Defendant would like to be presented to the Grand Jury. It can also include an offer to testify or to appear before the Grand Jury to answer questions. A prosecutor who receives a Trebus letter containing exculpatory evidence and fails to provide that evidence to the Grand Jury has made a grievous error.
The importance of a Trebus letter simply cannot be understated. First, it presents exculpatory evidence to the Grand Jury that may result in no charges being filed. This is HUGE – if the State cannot meet the burden of probable cause, it is highly unlikely they can meet the standard beyond a reasonable doubt. This can save the subject of the investigation time, money, headaches, and the indescribable stress of a criminal prosecution.
Second, it provides more areas to develop a successful defense. Suppose a prosecutor fails to present exculpatory evidence. In that case, the indictment will be returned to the Grand Jury for a new presentation that includes this evidence. As we discussed above, because law enforcement typically fails to collect evidence showing an accused is innocent of the crime, one of the only ways a prosecutor can learn of exculpatory evidence is through the Trebus letter. Failure to present this evidence can result in the matter being remanded to the Grand Jury. This costs the State time, money, and resources and jeopardizes the likelihood of obtaining an indictment at subsequent Grand Juries.
Lastly, a well-written Trebus letter can convince a prosecutor not to seek an indictment at Grand Jury. This is the best-case scenario – but it is only possible with diligent and effective criminal representation.
Securing representation before formal charging is still essential, even if the charges are ultimately filed for many reasons. First, it puts the prosecutor on notice that an attorney represents you. If charges are filed, it is more likely that the prosecutor will seek a summons for your appearance rather than seeking a warrant for your arrest. Second, it allows your attorney to promptly begin working on your defense – including beginning a thorough factual investigation into the alleged events.
Are you under investigation, or do you suspect you are under investigation? Call AZ Defenders now at (480) 456-6400 for a free consultation with our aggressive and experienced criminal defense attorneys.