What Happens In The Pre-Filing Investigation Or Intervention?
In a domestic violence case, there are often conclusions or assumptions in a police report that are not accurate, and that information unfortunately may go unnoticed and end up in the lap of the prosecutor. Their response is, “Well, the victim wants to cooperate” so they simply file the case. I’ve had cases where there are preprinted checkboxes and forms in domestic violence investigations that law enforcement officers simply check off to make representations to the district attorney’s office that are not true, whether done intentionally or not. As an example, when a person is arrested for a domestic violence case, the officer will approach the victim and ask if they are interested in an emergency protective order, an “EPO”. These EPOs are typically valid for three days.
Very often in some of the more minor cases, the victim will not request that. Yet there are other areas of the investigative report with checkboxes that indicate whether or not the victim is interested in prosecution or not. I’ve had many cases where law enforcement will simply check the box “yes” even though there was no EPO request or law enforcement was told the victim was not interested in prosecuting the arrestee. That information may not get transferred into the narrative portion of the report (where the police officer writes literally paragraphs about what took place). However, the checkbox ends up in a prosecutor’s desk falsely suggesting the “victim” is interested in prosecution when that is not the case. There are also circumstances where those checkboxes may indicate that there was physical evidence of an injury when, in fact, there wasn’t. Police officers are humans, and they make mistakes as well.
What a good defense attorney can do is follow up both with the victim and the defendant, as well as other potential witnesses, and gather additional statements or information, other evidence such as audio/video or photographs, text messages, cell phone contacts or communications. We can present that to law enforcement so that when they take that to the district attorney’s office, there is a more complete picture. There are times however when the law enforcement agency has already taken that information to the district attorney’s office, so rather than contacting the law enforcement agency, we would contact the prosecuting agency (District Attorney or City Attorney). It is important that your attorney have a rapport and knowledge of who the prosecutors are going to be on a specific case so that those people can be directly contacted. That is where my experience as a prosecutor, my long time defense experience, and my positive relationships with prosecutors comes into play.
When it comes to sex crimes, the same thing can be said in those types of investigations where a defense attorney may be able to obtain additional statements from both witnesses and victims, as well as any recordings that law enforcement may not have followed up with, and present that information to an investigator, a detective and/or a prosecutor so that they have a more complete picture of the incident rather than simply the response of law enforcement, who only had one or two hours to gather as much information as possible then move onto the next case or investigation. Keep in mind that when someone calls the police on a domestic violence case, the investigation at the scene only lasts 30 minutes or maybe an hour, so it’s certainly not a full investigation of the entirety of the circumstances.
Knocking on neighbors’ doors or talking to other witnesses who were at the scene may not take place until weeks later by law enforcement; but if we can gather that information upfront very quickly, we can present that to the detective, the arresting officer and/or the prosecutor so that they have it before they make a decision whether or not to file. I recently had a client who was arrested for a sexual assault. It was a circumstance where both the client and the alleged victim were extremely intoxicated at a bar. Things between them escalated from sexual contact inside the location to outside the bar; it was completely consensual and both parties were lucid and aware of what was happening. We ended up finding a video and interviewing four witnesses who were in the parking lot. It turns out that the morning after the consensual encounter between these two people, the “victim” felt guilty about having a one night stand and contacted police.
There were texts betweens the “victim” and the client prior to the arrest showing that activities the night before were consensual; but none of that information had been discovered by police. Within 12 hours from the incident, he found himself in custody on $100,000 bail. With my assistance and employing the services of a defense investigator, we were able to obtain these statements, obtain the video, look at his phone records and present it to the district attorney’s office within 24 hours, which is extremely fast and proved to be extremely compelling because on the following Monday morning, when he was due to be transported to court, they were reviewing the case to file very serious sexual assault charges that frankly would have had him in state prison for years.
If the case had been filed, this young man could have been looking at a tremendous amount of state prison time and being labeled a sex offender, simply because we may have been in a position of having to negotiate away charges and find a compromise in a circumstance where he shouldn’t be compromising at all. Fortunately, we were able to give all of this information to the district attorney’s office, literally the morning they were reviewing the case for him to be brought into court, and they rejected the case. It’s unfortunate, but the position that courts take and, more importantly, prosecutors take is that once the case is in court, especially in a circumstance where you have a sex crime with a victim who says that he or she has been wrongfully attacked or abused, the prosecutor’s office would prefer to simply litigate the circumstance because of potential political fallout as opposed to dismissing charges. However, if they are given the full picture of what are weaknesses in their case before they file, we may be able to prevent such a devastating occurrence from even happening.
For more information on Pre-Filing Investigation, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (626) 784-4143today.