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Criminal Cases

The Decision To Charge

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The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.


If a person is the subject of a criminal investigation it can be a scary process. It is rarely a bad idea to consult an attorney early - whether privately retained or paid for by the state. In some circumstances, the Maine Commission on Indigent Legal Services does agree to fund representation before a person is even charged or in the early stages of a case before a formal appointment at an arraignment or initial appearance for a felony.

A person has a right to the presumption of innocence and the right to remain silent. These are rights to be used and are lost when not taken seriously. Searches need probable case and that standard is meaningless when a person consents to one. If a police officer is asking to talk or asking to search, their case is weak. Say nothing and do not consent to any search.

The police initially play a significant role in whether or not someone is charged with a crime, as they are typically the first to investigate and gather evidence in a criminal case. While police officers do not have the authority to formally charge someone with a crime, their actions and decisions can have a significant impact on whether charges are ultimately filed.

The police have the power to make an arrest if they have probable cause to believe that a person has committed a crime. Sometimes that low standard does not exist and an experienced attorney can point that out. In some cases, police may also issue a citation or summons instead of making an arrest, depending on the severity of the offense, policies and statutes.

The police will typically conduct an investigation to gather evidence that will be used in the charging decision. The strength and quality of the evidence gathered by the police can influence whether or not the prosecutor decides to bring charges against a suspect. Sometimes those investigations are faulty, led by blinders about the identity of a suspect or simply their belief or disbelief of a version of events.

In addition, police officers often work closely with prosecutors to provide information and advice on the case. Overall, while the police do not have the final say in whether or not someone is charged with a crime, their actions and decisions can significantly impact the outcome of a criminal case and what happens next.

Prosecutors are then given incredibly broad discretion in charging decisions. They are supposed to evaluate the evidence gathered by law enforcement officers, assess the strength of the case, and determine whether it is in the public interest to pursue criminal charges against an individual. In practice, the time given to assess the strength of a case is cursory - particularly in misdemeanor cases.


In exercising their discretion, prosecutors may consider a variety of factors, including the seriousness of the offense, the defendant's criminal history, the strength of the evidence, and the likelihood of securing a conviction. They are supposed to take into account the potential impact of the charges on the defendant's life, the victim's wishes, and the interests of justice. Again, in practice, that can vary wildly depending on the quality and abilities of the prosecutor involved. Some are excellent and make wise decisions not to prosecute (called a declination) or will drop a case that is weak - others will simply refuse to budge on weak cases or bring the most petty or minor cases that don’t belong anywhere near a courtroom. Those decisions waste everyone’s time, adding an immense emotional burden on those charged as well as creating work for stressed court clerks, defense attorneys, and judges. But once brought, a defense attorney has to be as zealous an advocate as if it were the most serious case on the planet. Often, what many people in the legal system regard as minor is devastating and extremely traumatic for someone who has never been in trouble before.

In the charging decision, once made in favor of going ahead, prosecutors may choose to pursue a more serious offense or series of offenses than the evidence suggests, or they may opt to pursue lesser charges. For the former, this often leads to charge-stacking to encourage a guilty plea. For the latter, it is a criminal defense attorney’s job to have a prosecutor look more closely at the faults of their own case - or point out the disproportionate effect of a conviction. Prosecutors are supposed to be ministers of justice - a role often forgotten. It is the job of a defense attorney to remind them of that role.

However, prosecutorial discretion is not unlimited, and prosecutors are supposed to adhere to constitutional and ethical standards. For example, they must not base their charging decisions on discriminatory or personal biases, and they must not bring charges that they know are not supported by the evidence. Again, in practice, while ethical constraints are supposed to be at play, only ONE prosecutor has ever been publicly disciplined in Maine by the state’s Board of Overseers of the Bar. Whether willful or not, discovery violations are also common, these violations are rarely punished by courts, and they are difficult to find - since information is often shielded from public records laws even though it is able to be disclosed in a criminal case.


In short, someone accused of a criminal offense has quite an uphill battle, once the giant that is The Government has turned its attention and resources on that person. Whether someone is being investigated or charged, it is important to consult a criminal defense attorney as soon as possible. Having an attorney is rarely a bad idea.

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