Despite what is often portrayed on television, a defense attorney’s involvement with a case can begin before the suspect is even formally charged with a crime. One’s suspicion or involvement with a crime may not always result in an immediate arrest. It may not occur to some that the time between a preliminary investigation and being charged with a crime is a window of opportunity; if the suspect opts to wait to contact a lawyer until formal charges are presented, they are only forgoing a vital part of the legal process. There are preventative, and intervening measures to assist a suspect in lessening the eventual charge brought forth, or even avoid being charged altogether. While the prosecution is taking its time to decide on what charge to ultimately levy against the alleged suspect, the person at the center of it all is, unfortunately, often left in the dark in relation to the process. This stage in the legal process is vital, as it is the accused’s opportunity to reach out to a firm to conduct a pre-file investigation (PFI), where a defense attorney will conduct their own investigation on the accused's behalf.

Per the California legal process, law enforcement typically conduct an investigation into an alleged crime, gathering evidence and interviewing witnesses, to determine whether a crime was committed at all– and if so, what exactly to charge the alleged suspect with. Sometimes police may arrest and charge a suspect on the spot, if the officer in question deems probable cause to do so. This is the case when police officers witness someone committing a crime. In many cases however, the situation is a bit more complicated, and prosecutors need time to determine what charge they deem most appropriate to levy against the suspect, if any at all (this is especially true in cases where the alleged perpetrator is being accused by a third-party, outside of law enforcement). It is important to note that in the state of California, the alleged victim does not have the legal capacity to press charges, despite what is often presented on television. Evidence always goes one way, from police to prosecutor who then decides on the most appropriate action to take

During this preliminary investigative stage of the process, police will reach out to you or a loved one to inform you that such an investigation is underway. The suspect could also be subject to police searches of their property or place of residence. Even though this process can be intimidating, it is important to realize that during this time, no charges have been officially filed against them, and they still maintain a certain number of important rights. Hiring an attorney during this time will shield the client from answering directly to law enforcement or being taken advantage of. This is just one of several advantages of having a lawyer on retainer during a pre-file investigation.

The intention of a PFI is ultimately to gather evidence favorable to the defendant, and possibly prevent the charges from being levied against the client in an official capacity, or convince the prosecutor to lessen the charge against the suspect. The findings of this investigation are brought to the District Attorney (DA), or other pertinent prosecutor in an effort to aid the suspect in any way possible.

No matter the case, it is always prudent to reach out to a firm about conducting a pre-file investigation, and to do so as early on as possible. The earlier a pre-file investigation begins, the more time a firm or attorney will have to utilize their resources towards a favorable outcome.

1. What Exactly is a Pre-File Investigation in a California Case?

The term “pre-file” describes the process in which a defense attorney investigates the charges brought to the client before those charges are formally filed. In a way, it is a preventative measure to possibly have the charges lessened or dropped based on the finding of the investigation.

During the investigation, an attorney or firm may do several things. They could, for example, examine witnesses already questioned by law enforcement, or find new witnesses to question. Oftentimes, witnesses are more open to disclosing certain information with someone other than law enforcement. Police typically only ask questions with the singular focus and intention of collecting damaging information, instead of hearing all sides. For this reason, an attorney might examine these witnesses for themselves to find out what else might come to light. They might also look to new witnesses to question. During this time, the attorney will also gather evidence and examine background records. If the alleged suspect has little to no prior criminal record, an attorney may find it easier to convince the prosecutor that a lesser charge is more suitable, especially in wobber cases. Or they might convince the prosecutor that an aggressive pursuit towards a specific time is not worth the effort. Examining background records also includes investigating the accuser and their relationship with the accused, to uncover any discrepancies in their story, possible motives, or a past history of lying to police. A good attorney who pursues this route will attempt to lessen the accuser’s credibility in favor of the accused. If there are any experts pertinent to the case, the attorney will also consult with them during your pre-file investigation.  Whatever the case, upon completion of an investigation, the goal of the defense lawyer is to have gathered sufficient evidence to demonstrate that the suspect did not commit a criminal offense, or that the offense was less severe than originally considered.

The lawyer will then meet with the DA or other prosecutor to:

  1. Present evidence gathered by the investigation;
  2. Discuss the merits of the charges

The DA will then take one or more of the following actions:

  1. Make formal charges against the suspect;
  2. Reduce the charges, or file no charges;
  3. Request further investigation by law enforcement, and then return the case to the D.A.

2. What are the Benefits of a Pre-File Investigation?

A pre-file is instrumental to the client as it can result in a District Attorney to not file a charge against the suspect, or simply pursue a lesser charge. For instance, if a defense attorney convinces a prosecutor that an infraction, rather than a misdemeanor is a more appropriate charge given the situation. If the latter is found to be true, the alleged suspect could avoid jail time all-together.

People typically only learn of an ongoing investigation against them when law enforcement contacts them at their home or place of business, reach out to a family member, or when a warrant is presented and executed. For this reason, hiring an attorney on a pre-file basis immediately will shield the client from talking to investigators, and alleviate the possibility of self-incrimination. Remember that the police cannot search your home or vehicle without a warrant except in considerably rare instances. If an officer is asking permission or pressuring someone into allowing them to conduct a search, it’s more likely than not that the officer in question does not have the pertinent warrant, and is looking to coerce the alleged suspect into giving verbal permission. This does not apply to situations where the officer has probable cause, like in the case of a plain view doctrine, where evidence is in obvious sight of the officer. In any case, the suspect still reserves the right to withhold any answers while being questioned.

It is important to note, when deciding which charges to present, the D.A. will only have the information from the police report to reference. These reports are typically biased, and provide a one-sided, limited view on what transpired in a criminal case. A pre-file investigation will examine the possible facts and details which have been omitted or overlooked, intentionally or otherwise.

Police officers will often try to speak in a helpful, considerate tone, in an effort to make the suspect disclose damaging information, and possibly incriminate themselves. For this reason, it is beneficial to immediately hire an attorney to remove the burden of speaking to law-enforcement, and prevent possible self-incrimination. It is a common misconception that reaching out to a lawyer is only warranted when a formal charge is made. However, having an attorney present will prevent the client from not only disclosing damaging information but potentially opening the door for more charges to be made. Until the suspect has an attorney present, it is always prudent to plead one’s Fifth Amendment right against self-incrimination. Anything you say during the course of the investigation can be construed– rightly or wrongly– as evidence of one’s guilt. Some people have a natural tendency towards honesty, especially when it comes to speaking with law enforcement. Even so, one should always be privy to their rights, and err on being overly cautious when speaking to law enforcement, especially considering that the police’s main objective in questioning is to gather information for the prosecution.

On the subject of police behavior, it is not unheard of for a pre-file investigation to uncover discrepancies in police conduct during the time of arrest or in their investigation. A good defense attorney will uncover these discrepancies as they can be invaluable to either bolstering the defense of the accused, or they can significantly increase the likelihood of having the prosecutor decide to not formally press charges.

Police investigations are typically a prolonged process, especially in white-collar cases that are encumbered with a long series of statutes of limitations. During this process, it is advisable to keep an attorney on retainer to stay informed of the investigation, and to prevent the client from being interrogated further. The process is the attorney’s opportunity to gather as much evidence on behalf of the client as possible. The earlier in the process that a defense attorney intervenes, the better chance of a favorable outcome of the accused.

On the issue of your attorney convincing the D.A. that a lesser crime is more suitable, there are several factors to take note of. In California, there are crimes which are known as ‘wobblers’. These ‘wobblers’ are crimes that can be charged as either a felony or a misdemeanor. These types of crimes cover an array or charges such as vehicular manslaughter, burglary, forgery, sexual battery and hundreds more. In addition, several offenses can alternate, in a similar fashion, between a misdemeanor and a non-criminal offense– the latter which involves no jail time for the suspect. These could include minor infractions such as disturbing the peace, or trespassing. Given that California offers the means for a prosecutor to use their own discretion in filing a charge, an attorney may likely use the pre-file investigation process to use that flexibility within the system to lessen the severity of the charge, before that charge is even levied against the accused in an official capacity. Some crimes are known as “straight felonies” in that they can only be charged as a felony. Depending on the severity of the crime, a prosecutor could decide that charging a straight felony is the most correct course of action. In such a case, it is paramount to contact a lawyer to conduct their own PFI to convince the D.A. or prosecutor to ease up on such a charge. The takeaway from this is that there is room within California’s legal system for a PFI to be especially effective in reducing charges on behalf of the accused.

If the defense attorney determines that the suspect had set out to commit a crime but ultimately failed, for whatever reason–  be it abandonment of the attempt, or the attempt was thwarted in some way, the attorney might convince the D.A. or prosecutor that the charge of ‘attempted crime’ is more suitable. In these cases, the attempted crime’s sentence, if convicted, is one half the sentence of the full-fledged crime. For example, this could result in one-half jail time of the attempted crime, or one-half the fine.

3. When Should a Suspect Contact an Attorney to Conduct a PFI?

As a rule of thumb, whatever the nature or severity of the case, one should always reach out to an attorney to conduct a PFI as soon as possible. When questioning witnesses, as well as the alleged suspect and alleged victim, events are still fresh in people's minds and witnesses are more likely to be available for questioning. A prompt investigation on behalf of the accused also decreases the likelihood of evidence being tampered with.

A prosecutor will only have so much allotted time to act on a case, depending on the severity of the crime. In California, in the case of a misdemeanor, a prosecutor is given one year to press formal charges. In the instance of a potential felony, the time allowed goes up to three years. Most charges are levied against the client much sooner than the aforementioned time frames, but a suspect should still recognize how invaluable having a pre-file investigation done on their behalf is, during this span of time. The PFI process is a critically important, proactive, and preventative measure.

While it is possible for formal charges against a suspect to never come to fruition, a PFI will significantly improve the chances of those charges being withdrawn or reduced. While a PFI’s main function is the investigative aspect as it pertains to the crime itself, other findings could prove beneficial for the client; for example, a defense attorney may find that the police lacked probable cause for stopping or detaining a suspect. This often comes what is called an ‘unlawful detention’– when an officer, without legal precedence, prevents one or more persons from leaving their presence. In a broader sense, an unlawful detention occurs whenever an officer violates one’s Fourth Amendment rights. This can include situations when the police officer uses excessive force, or in instances when they lie to secure an arrest warrant from a judge. In all of these cases, the result is an unreasonable search and seizure.

An attorney could also uncover events that, when presented to the prosecutor, work in favor of the alleged suspect. A minor, for instance, may not have been read their Miranda rights before interrogation. In these scenarios, any damaging statements or admission of guilt given by the minor becomes inadmissible evidence, and will no longer hold up in a court of law. It is important to differentiate this from a Terry stop: police still reserve the right to question someone briefly. A police officer with ‘reasonable suspicion’ can question anybody without giving them their Miranda warning. ‘Reasonable suspicion,’ however, is not enough for an officer to make an arrest. The officer must instead have ‘probable cause’ – a higher standard. Bear in mind how this connects with an ‘unlawful detention’ as mentioned earlier.

As a matter of good practice, the defense attorney will often look into the accuser’s background to uncover any history of making false reports to law enforcement. This could include lying to prosecutors or police officers about someone committing an act of domestic violence against themselves or another, or telling a D.A. that an ex partner or spouse had engaged in prostitution. Whatever the case, one is only convicted of submitting a false report if the person knowingly did so. A false report made under good faith will not show up on a police record, and will not ultimately be pertinent information to a pre-file investigation. If the arresting officer in question has a reputation for overreach, or even a record of falsifying reports, these discrepancies can be used to persuade the prosecutor that a lesser charge or no charge is more appropriate. All of these examples are what could potentially be uncovered in a pre-file investigation that will work in the defense’s favor. These examples take time to uncover, but starting the pre-file as early as possible ensures the requisite time for the lawyer to find these discrepancies, and help the suspect. Often the client’s mind is anxiously focused on the alleged crime itself, when there are other factors to consider that might work to their benefit during the course of the investigation.

4. What Should a Suspect Consider when Hiring a Lawyer for an Investigation?

When looking for an attorney or firm to conduct a pre-file investigation, consider the following factors:

  1. Experience;
  2. Investigative resources;
  3. The firm’s accessibility to law enforcement and prosecutors

4.1. Experience

Consider the factors that speak to a specific attorney or firm’s experience. Evaluate not only the quantity of pre-file investigations they have conducted, but the success rate of those investigations. Some firms specialize in PFIs, and have a team committed to these exact situations.

4.2. Investigative Resources

Different firms come with a variety of resources and connections at their disposal. Quantity and diversity of resources means the greater likelihood of discovering favorable evidence on behalf of the suspect.

4.3. Connections with Law Enforcement and Prosecutors

The success of a pre-file investigation ultimately hinges on the attorney’s ability to convince police and prosecutors to lessen or prevent the charges. For this reason, consider an attorney or firm’s web of connections and access to law enforcement personnel. Police and prosecutors need to hear the client’s side of the story, and a good attorney will have the means to convey that story to the right people.

If, however, the prosecution goes ahead with the charges, despite the defense conducting a PFI, a warrant will be issued for the suspect’s arrest. Your defense attorney might have some hand in lessening the charge against you. The formal charge will come in the form of either an infraction, misdemeanor or felony. Since many charges fall under the ‘wobbler’ law in California, even if the suspect is ultimately convicted, a judge may exercise their discretion and sentence the accused based on a lesser charge. Whatever the case, discrepancies found in how evidence was gathered, the integrity of the evidence, or in the police officers’ actions and conduct during the investigation, will always have a favorable impact towards the defendant, even once the case has reached trial.