Charging Decisions and Arrests

Charging Decisions and Arrests

If an officer, following an investigation, believes a crime worthy of prosecution has occurred, he will seek arrest.  In the North Carolina state system, officers or detectives are authorized to arrest without first seeking advice from a prosecutor. In serious matters, detectives will consult with an assistant district attorney to determine which charges are most applicable.

In the federal system, a decision to charge is made by a federal prosecutor and usually following a significant investigation.

Police and prosecutors have the sole discretion to authorize charges.  A defense attorney is almost never consulted about the appropriate charge for a client.  In fact, defense lawyers are rarely informed about the issuance of a charge, although prosecutors or police will many times advise an attorney to surrender his client rather than undergo the embarrassment of a public arrest.

Criminal Information & Indictment

Arrest may be made by warrant, criminal information or indictment, depending on the jurisdiction, and the type of crime. An arrest warrant is a document sworn out before a judge or magistrate that authorizes the resting officer to charge the defendant with a crime.  Warrants are used frequently at the state live.  (Citations may also be used in North Carolina to charge misdemeanors.)

Warrants are the initial charging document in most North Carolina cases that result in arrest, but cannot be used to effect a conviction.  A conviction by plea may be entered by a criminal information or indictment.  A conviction at trial is almost always the result of an indictment.

A criminal information, like a warrant, is a document sworn out by the agent, officer, or prosecutor who attests to the charges. An indictment is returned by a grand jury, a group of citizens who sit in secret to hear evidence offered by the government and decided whether probable cause exists to charge a crime.

The threshold to charge by indictment is low, and grand juries return true bills of indictment in the vast majority of cases they hear.

The defendant must be charged by indictment in felony cases in the state or federal systems unless he waives that right. Defendants almost never waive indictment before trial, but sometimes waive indictment before pleading guilty.

Having probable cause to believe a crime has been committed, police officers can arrest the individual and either seek an arrest warrant or criminal information soon thereafter.  The arrest results in detention, which may be brief in cases involving minor crimes, or may be prolonged in serious matters.

Where a person has hired an attorney in advance of arrest, the attorney can usually negotiate the defendant's surrender if he is charged with a crime.  Surrender involves turning the client over to authorities at a courthouse or jail, where the person is detained, processed, and appears before a magistrate.

Surrender can avoid the embarrassment of arrest at work, or at home in front of children.

First Appearance and Bail

In the state system, the magistrate, who are judicial officials who work at county jails, will set the initial conditions of release. These release conditions may simply involve a written promise to appear in minor cases.  In serious cases, the magistrate will usually set a secured or cash bond requiring the person or his family or friends to either hire a bondsman or put up collateral to ensure compliance with the conditions of release and attendance at court.

If the person has been detained, the bail conditions will be re-evaluated within 24 hours by a District Court judge who can lower or raise bond, and can add or remove conditions that otherwise would be imposed upon release.  Subsequent bond hearings can be requested in District or Superior Court to modify conditions of release.

The federal system operates differently. Where an arrest is demanded, the person will be held in custody at a local jail, but will appear before a federal magistrate judge within 48 hours for a First Appearance.  That first appearance requires a litany - the reading of certain rights - and the possible appointment of counsel if the person is unable to hire a private attorney. A lawyer from the Federal Public Defender is present to help all defendants through the process, even if the defendant may choose to hire a private attorney later.

The Government prosecutor also appears, and informs the court and the individual of the charges, and the maximum possible punishments. The Government also announces whether it seeks detention of the person.  If the Government moves for detention, the person will be detained temporarily in order for the person to appear at a detention hearing with a week or so.

Whether in the state or federal system, time served in jail awaiting the disposition of the case is credited against an active prison sentence, although certain rules apply if the person is held in state custody, but subjected to federal prosecution.

Federal Detention Hearing

A federal detention hearing can be waived by a defendant who may understand, for strategic purposes, that remaining in custody offers the best chance for a reasonable outcome to the case.

Where a detention hearing is sought, the hearing is governed by the Bail Reform Act of 1984 - 18 USC 3142 - which sets the burden of proof based on the charges, and requires the magistrate to set the least restrictive conditions in order to achieve the twin aims: the safety of the community, and the presence of the defendant at trial.

The federal system has eliminated monetary bonds.  Release will either be granted or refused, although the judge may require the person submit to electronic monitoring, stay with a third-party custodian, be restricted in his travel, and be supervised by a probation officer.

In white collar cases, release is favored, especially for citizens who have had little or no previous criminal history.  In cases involving violence, child pornography, or terrorism, release is uncommon and the person will often be detained at a local jail within the federal district.