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Pre-Filing Investigations & Criminal Defense

Updated: Nov 13

Definition: A pre-filing investigation is a probe and examination, usually conducted by law enforcement agencies, into the validity of an allegation that a person or entity has committed a criminal offense. Pre-filing investigations are conducted before the possible filing of criminal charges by a prosecution agency against the person or entity investigated.


Note: Law enforcement agencies includes, but are not limited to, any of the following: Sheriff’s Department, police department, DEA, FBI, USPI, FTA, and more.


Law enforcements’ pre-filing investigations might include: A report of any witnesses’ statement to the alleged criminal conduct, a collection and summary of physical evidence, if any, collected in the investigation (i.e. gun, knife, clothes, blood, sweat, semen, gunshot residue, text, video or audio recordings, social media posts, etc.), a collection and summary of scientific analysis, if any (i.e. blood-splatter patterns, GPS tracking, blood analysis for the presence of drugs or alcohol, traffic accident reconstruction analysis, bullet trajectory analysis, medical reports, tire-track pattern analysis, ballistics analysis, DNA analysis, voice analysis, etc.), a collection and evidence of psychological analysis, if any (i.e. psychological analysis of child witness statement [forensic interview], psychotic behavior analysis, etc.), a confession by suspect (if any), physical properties reports and analysis as they relate to the alleged criminal conduct, if any (i.e. weather reports, maps, and environmental conditions), and more.


Law Enforcement Recommendation: The summary of law enforcements’ pre-filing investigation may be forwarded to the relevant prosecution agency (district attorney, DOJ, etc.). This will occur only if the law enforcement has probable cause to believe a crime has been committed by the investigated person or entity (suspect). Thereafter, the prosecution agency may elect to file criminal charges against the investigated person or entity.


Note: A prosecution agency is not obligated to file criminal charges against a person or entity simply because the law enforcement agency who forwarded the pre-filing investigation report has recommended prosecution against the investigated person or entity. The prosecutor has prosecutorial discretion in this regard.


One of three results will occur after the relevant law enforcement agency has forwarded its pre-filing investigation report to the relevant prosecution agency:


  • 1. File Criminal Charges: The prosecution agency will file criminal charges against the person or entity suspected of committing a criminal offense. Sometimes the criminal charges filed by the prosecution agency are different than the ones recommended by the law enforcement agency. For example, if law enforcement recommends murder charges against a suspect, the prosecution may elect to file different criminal charges, such as voluntary manslaughter charges.


  • 2. Not File Criminal Charges: The prosecution agency may elect to not file criminal charges. This usually happens in criminal cases where there is not enough evidence to support criminal charges despite a contrary belief held by the law enforcement agency who recommended criminal prosecution.


  • 3. Return Report for Further Investigation: The prosecution agency may return the pre-filing investigation report for further investigation. This occurs when the prosecution agency receives a pre-filing investigation report that the prosecution agency believes is incomplete as received, but could be the basis of prosecution with further investigation.


Law Enforcement Bias: Pre-filing investigation reports prepared by law enforcement agencies are not intended to serve as a complete analysis and conclusion of all evidence related to a criminal case. Rather, they serve as a basis for possible prosecution. Unfortunately, pre-filing investigation reports that are prepared by law enforcement agencies are subject to a bias in favor of prosecution. In other words, law enforcements’ entire investigation is usually slanted in favor of prosecution, as opposed to against prosecution. The result of this bias is that law enforcements’ reports and analysis tend to exclude evidence considered favorable to the criminal suspect.


Example of Law Enforcements’ bias in pre-filing investigation reports include: completing a pre-filing investigation report without conducting an interview of all witnesses to the alleged crime; guiding interview towards prosecution (leading, compound, and suggestive questioning of witnesses by bias law enforcement investigators); dismissing and failing to incorporate objective evidence that is favorable to the criminal suspect (excluding contradicting statements by witnesses adverse to the suspect, failing to collect contradicting physical evidence that impeaches prosecution evidence, etc.), and more.


Note: Law enforcements’ bias is not necessarily purposeful. A psychological phenomenon known as confirmation bias is subconsciously present in every person. In summary, a confirmation bias means that a person tends to reject, subconsciously, information that does not conform to his or her present belief. Information that does not conform to a person’s present belief causes a cognitive dissonance in that person’s brain that negatively affects his or her physiology. In other words, it’s more comfortable, both cognitively and physically, for a person to receive and believe information that conforms to a belief that that person presently holds. Consequently, law enforcement investigator tend to be prosecution-friendly for the same reasons that lead those investigators to enter a law enforcement career in the first place.


Defense Investigators: As stated, most pre-filing investigation are conducted by law enforcement agencies; however, suspects in a criminal case are not forbidden from conducting an investigation in their defense.


Note: A suspect in a criminal case should not attempt to personally investigate criminal allegations against themselves for a variety of reasons, including, but not limited to, the fact that anything the criminal suspect says or does during her personal investigation, can, and will be, used against her in court.


Defense Pre-filing investigation: A defense pre-filing investigation is sometimes conducted in response to law enforcement’s pre-filing investigation. Essentially, a defense pre-filing investigation is conducted to accomplish any of the following:


  • To find and consult with defense experts that will refute law enforcements’ prosecution-friendly evidence (especially scientific evidence);


  • To research adverse witness’ motivation or tendency to fabricate (criminal records search, etc.);


  • To collect, preserve, and present evidence that offers, by implication or expression, an alternative defense-friendly explanation of law enforcements’ prosecution-friendly evidence (i.e. defense attorney presenting and/or arguing the value or alternative meaning of defense or law enforcement collected evidence). For example, a defense investigator who presents a statement from a witness that impeaches the statement of a prosecution-friendly witness is common in defense pre-filing investigation reports.


  • To stop law enforcements’ effort to obtain a suspect’s statement. In short, a suspect or defendant in a criminal case does not have to answer questions posed to her by anyone, including and especially law enforcement personnel and their agent.


  • To stop law enforcements’ effort to describe the suspect’s silence in the face of accusation as an implication of guilty.


  • To inform the law enforcement agency, the prosecuting agency, and the court, that the criminal suspect or defendant intended to fight the criminal charges and should not be considered a flight risk (used to reduce bail or secure an own-recognizance release (pretrial release without the need for bail), and more (See Bail in Criminal Court).


Note: Law enforcements’ effort to collect prosecution-friendly evidence almost always includes an effort to secure the defendant’s confession. Perhaps nothing is more damaging to the defendant, in terms of criminal liability, than a defendant’s statement or confession. In their effort, law enforcement will employ every trick of the trade to get a suspect to confess to a crime or otherwise make self-incriminating statements (Self-incriminating to the suspect). These tricks of the trade include: coercing a confession; deceiving the suspect into making a statement (i.e. informing suspect that evidence exists outside of the suspect’s confession that supports prosecution when there is no such evidence that actually exists); aggravation and mitigation technique (informing suspect that she is accused of criminal conduct beyond what law enforcement truly believes (aggravation) in order to obtain the suspect’s admission of the actual criminal conduct (mitigation), pretext phone calls (calls or social media communication between the alleged victim and a criminal suspect where law enforcement is monitoring and recording a law-enforcement-prepared dialogue and which is designed to elicit self-incriminating statements from the criminal suspect), and more.


IMPORTANT: A criminal suspect should remain silent in the face of criminal allegations. Anything a person says or does can, and will, be used against that person in court. A criminal suspect should make no statement to anyone other than her criminal defense attorney. This means no verbal or written statement to anyone, including, but not limited to: an alleged victim, a friend or family, a priest or minister, a spouse, an alleged co-defendant, a coworker, and especially to law enforcement (police, sheriff, DEA, FTA, USPI, FTA, ICE, etc.). A criminal suspect or defendant should contact a criminal defense attorney immediately upon learning that she is suspected of committing a crime, regardless of whether or not an investigation is actually commenced by law enforcement. Also, a person has a right to remain silent in the face of criminal accusations, but this does not mean that the criminal suspect may mislead law enforcement if he or she decides, however unwisely, to talk to law enforcement. When a criminal suspect lies to law enforcement that criminal suspect could face criminal charges of obstruction of justice or false personation.


Professional Licensing & Immigration: A criminal suspect should remain silent in the face of criminal accusations. But what happens when the criminal suspect’s professional licensing agency requests information about an arrest? After all, some professional licensing agencies require timely self-reporting of the facts surrounding any arrest of the licensee in order for the licensee to maintain good standing within that person’s profession. Every criminal case involving a criminal suspect or defendant that seeks, or holds, a professional license is different; therefore, the action that a criminal suspect or defendant should take in every case is different. With that said, a criminal suspect or defendant should not make a statement; but rather, if a statement is to be made on behalf of the licensed professional, it should be made through a criminal defense attorney. In practice, this usually means that the only information relayed to the criminal suspect or defendant’s respective licensing agency is the fact of the arrest, the criminal charges (if any), the case number (if any), and very little else. This is another benefit of retaining a criminal defense attorney for pre-filing investigation and litigation as opposed to waiting until criminal charges are levied against the defendant in criminal court. Also, the right to remain silent applies to non US citizens (See Professionals and Criminal Allegations, Immigration Consequences for Criminal Conduct, and Miranda Rights).


Defense’s Pre-Filing Investigation Purpose: The purpose of a defense-related pre-filing investigation is to collect and present defense-friendly evidence in response to, or contemporaneous with, law enforcement’s pre-filing investigation report. If the suspect is successful in her pre-filing investigation effort then she could stave off the negative affects that accompany a criminal charge, including the possible need to secure bail, saving her reputation, the need to have an arrest sealed and destroyed (even if the prosecution agency later dismisses the filed charges), and more.


Note: Some types of evidence tend to be lost or unrecoverable when that evidence is not timely preserved. A defense-related pre-filing investigation is sometimes used to preserve that otherwise fleeting evidence that could be favorable to the criminal suspect. For example, if the law enforcement agency that investigates a criminal allegation takes three months to interview a person thought to be a defense-friendly witness, and that defense-friendly witness dies before he is interviewed by law enforcement, then that defense-friendly witness’ statement also dies with the witness. On the other hand, a defense attorney’s investigator could secure defense-friendly witness statements before those statements are lost or before the witness losses memory of the event. Keep in mind that prosecutors have at least three year in which to file most felony charges and at least one year in which to file misdemeanor charges against a criminal defendant. This time frame for filing criminal charges is known as the statute of limitations in criminal cases . This means that sometimes law enforcement does not investigate a criminal allegation with all deliberate speed and defense-favorable evidence could be lost if not otherwise preserved by the defendant herself.


Limitations: A defense-related pre-filing investigation can be used in just about any criminal case; however, these early defense options can create problems for suspects if they are not handled correctly. For example, if a suspect in a criminal case conducts her own defense-related pre-filing investigations, she could be doing more harm than good when she solidifies the memory of a witness who turns out not to be defense-friendly; or, she could find prosecution-friendly witnesses who were unaware that law enforcement would like to speak with them. Also, defense investigators must disclose for whom they work (the criminal suspect or defendant) and sometimes witness are reluctant to give statements to defense investigators. Finally, a criminal suspect who personally attempts to question a witness in an ongoing investigation could be perceived as intimidating a witness.


Cases for Pre-Filing Investigation: Common types of allegations that make good use of defense-related pre-filing investigations include: domestic violence crimes (domestic battery, child abuse, child neglect, willful endangerment of a child, and inflict corporal injury on spouse), sex crimes (oral copulation, rape, statutory rape, spousal rape, sodomy, sexual penetration, indecent exposure, sexual battery, lewd and luscious act on a minor, and sexual assault) battery, assault, criminal threats, brandishing a weapon, possession of burglary tools, unauthorized use of a vehicle, and more.


Note: Defense-related pre-filing investigations can be used in just about every type of criminal case; however, in practice, the criminal allegations listed above are more likely to incorporate the use of defense-related pre-filing investigations. In addition, misdemeanor criminal allegations, other than driving under the influence of alcohol (DUI), indecent exposure, statutory rape, and annoying or molesting a child, are not usually defended in the pre-filing stage. The reason for this is that most misdemeanor criminal charges are investigated, forward to the prosecution agency, and filed or rejected by the prosecution agency rather quickly; therefore, criminal suspects rarely have time in most misdemeanor criminal cases to intervene at the pre-filing stage. Additionally, pre-filing investigations initiated by defense are cost-prohibitive in relation to the possible punishment related to the impending misdemeanor charge.


Pre-Filing Investigation v. Pre-Filing Litigation


A pre-filing investigation occurs before the filing of criminal charges. Sometimes a defense-related pre-filing investigation can be used to stop a recommendation for prosecution from ever reaching the desk of a prosecutor. On the other hand, once the pre-filing recommendation for prosecution reaches the desk of the prosecutor, the criminal suspect’s attorney might engage in pre-filing litigation in an effort to persuade the prosecutor from filing any criminal charges, or at least file reduced criminal charges.


For example, if law enforcement forwards a pre-filing investigation report to a prosecutor, and the prosecutor has not yet filed criminal charges based on that report, the criminal suspect’s defense attorney could present defense-favorable evidence, such as letters that demonstrate the suspect’s good-character or character for non-violent, in an effort to persuade the prosecutor to file reduced charges (i.e. misdemeanor criminal charges as opposed to felony criminal charges in wobbler cases [See Wobbler Crimes & Misdemeanors v. Felonies]).


Note: Without a defense-related pre-filing investigation report a prosecutor only has the law enforcements’ recommendation and supporting evidence to consider. A defense-related pre-filing investigation report gives the prosecutor a defense perspective to consider. This can result in the prosecutor declining to file untenable criminal charges in light of defense provided evidence or lead the prosecutor to file mitigated criminal charges.


To learn more about pre-filing investigations, or pre-filing litigation, contact our criminal defense lawyers without delay. Our criminal defense law firm is familiar with defense-related pre-filing investigations and pre-file litigation and we offer no-cost consultations every day of the week. Call today!


909-913-3138


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