PART 3 – The Intake procedure
After the police finish their report(s), they are forwarded to the District or City Attorney’s Office(s). An individual prosecutor will review the report and decide which charge(s) to file, if any.
Q – What standard of review do prosecutors use to determine whether or not to file a Battery charge against me?
A – They must have a Good-Faith basis, i.e. do they have proof or do they believe they can prove that a battery was committed and that the defendant committed it. My co-workers and mentors used to say “charge what you can prove, and prove what you charge”
If prosecutors have any questions, and they were trained properly and are dedicated professionals – they should contact and/or set up a face-to-face meeting(s) with the police and/or an alleged victim BEFORE filing any charge. This does not ALWAYS happen for various reasons.
Q – Do prosecutors HAVE TO file a case once police made an arrest?
A – No, and sometimes they do not, it is called a DENIAL. However, upon reviewing a police report prosecutors can file totally different charges, whether more or less serious.
Q – How long do prosecutors review police reports BEFORE they decide whether or not to file?
A – In the more straight-forward cases, they usually file within thirty (30) days. Other cases that are problematic, may sit for a while, or be declined right away.
Q – How long does a prosecutor get to decide before the case reaches the Statute of Limitations?
A – One (1) year on a misdemeanor, three (3) years on a felony battery.
Q – What else do prosecutors review before arraignment?
A – They check to make sure which category a battery charge belongs in – is it a domestic, was the alleged victim pregnant, does the defendant have any priors, is there a divorce going on? Is there a companion temporary protection order as well?
***What we have been seeing lately in some prosecutor’s offices is that they file the less-strong battery cases right before the statute of limitations expires – and then they see what they can get out of a defendant (if anything). I suspect this is done based upon a connection between the number of cases the individual DA’s offices file and the amount of money they receive from the local government and/or State of Nevada***
When I say “less-strong”, its usually a case with a witness problem, or conflicting evidence etc. I suspect this frequently happens when someone at the DA’s Office first INTAKED/worked on the case, the alleged victim did not respond/could not be located. Remember, the DA’s Office only needs a witness if a defendant will not enter a plea. Some people never fight their case – and a plea to a charge that (unbeknownst to them) could never be proven.
MEMORIALIZING A CHARGING DECISION
The paperwork officially charging a defendant is called either an INFORMATION if filed directly or an INDICTMENT if made by a Grand Jury. Typically, only the most-serious charges are reviewed by Grand Juries. Once the prosecutor finishes the document, it is signed and filed with The Clerk of Court. Then, either a warrant is signed for the arrest of the defendant, or a Notice to Appear in court is mailed to the last-known address of the defendant. If the date comes and the defendant does not show, a warrant will be issued by the Judge.
Q – What does the prosecutor use to determine whether they can prove the case?
A – Two big things come to mind, # 1 is Witness availability/viability. Prosecutors need someone to show up, take the stand, point at, identify and say who battered them. In a higher-quality case, there will be CORROBORATION that a battery was committed on that person, i.e. pictures of a black eye etc.
The second big thing that prosecutors look for in determining if they can prove a battery is the absence of conflicting evidence, i.e. evidence of self-defense or that the alleged victim was not a victim at all. This is where all of our earlier posts get tied in. Did the police interview EVERYONE at the scene and get a written statement? Otherwise, at this point, how can the prosecutor even know whether or not there is a differing version of events? ***This is where greater diligence on our part will begin to benefit you.***
Frequently, and very recently, we had a case where the police alleged our client was so enraged and intoxicated at the time of the arrest that his statement could not be taken. The body-camera videos from the officers on the scene provided to us in discovery showed that to be obviously false. Prosecutors are free to call alleged victims but do not always take that step.
***This is a textbook example of what we do – and why it is valuable. As defense attorneys we exploit the mistakes of others and use any misstatements by the police to help you. We can attack a police officer’s credibility when something he or she swears to – is shown to be false. We consistently receive favorable plea offers / outcomes for our clients by knowing the facts of our clients’ cases BETTER than our opponents***
Keep in mind when digesting all this information that some prosecutor’s offices have an entire INTAKE DEPARTMENT. Therefore, some disconnect may occur. The current prosecutor may be seeing everything in your case (when they actually do look) for the first time. I have frequently suspected (or knew for sure) when talking to prosecutors during plea negotiations that they knew little or nothing about these cases. That is because they have so many of them, and the diligence of individual prosecutors and offices varies greatly. Even if an individual prosecutor knew your case at one time, they might forget, might quit, might get promoted, might get fired etc. Many prosecutors never even examine a case and/or take a case seriously until it is set for trial.
OTHER IMPORTANT FACTORS
Where were you arrested?
Henderson, Las Vegas, North Las Vegas and Boulder City Justice Courts and/or Municipal Courts all have different prosecutors and police. They all have certain nuances and not all of them are equally reasonable in plea negotiations.
Which judge did you get?
Every lawyer and most people have heard stories about certain judges, some are stricter than others, some are more open-minded than others, many have pet-peeves. They are all human and humans can be unpredictable. They all have a lot of power. Many are former prosecutors who were extremely strict before they took the bench.
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