STEP 2 – FILING CHARGES: WHO MAKES THE DECISION TO FILE CHARGES?
Once law enforcement has gathered sufficient evidence through investigation, the case is given to the district attorney. The district attorney is the lawyer for the state that is solely responsible for bringing charges against a defendant using the process called prosecution. This begins the “lawsuit” portion of a criminal investigation, moving the matter largely to the courts rather than the police station.
SUFFICIENT EVIDENCE
The investigating police officer will turn over the fruits of the investigation to the district attorney for the proper county. The county handles the prosecution of all state offenses; that is, violations of a state law. The police investigate both state offenses and municipal infractions, or violations of city ordinances. However, the district attorney will only handle state felony or misdemeanor charges (a city prosecutor will handle ordinances violations for each city). The charges generally must be brought in the county where the crime is alleged to have taken place. The district attorney will go through the investigation file to determine if there is sufficient probable cause to file a complaint. This complaint is the legal pleading that lays out which crime(s) the suspect is alleged to have committed.
The district attorney will likely simultaneously file paperwork requesting that a judge issues an arrest warrant for the suspect. An arrest warrant is similar to a search warrant, but instead sets out a person that is to be brought into custody. A district attorney does not have the power to issue an arrest warrant by herself. Rather, only a judge can sign a warrant to make it effective. The judge will ensure that probable cause exists to suspect the individual has committed a crime. To show such probable cause, the district attorney will generally draft a written statement that outlines the evidence obtained by police during their investigation. Again, the threshold the district attorney must reach here is very low: probable cause only requires a “reasonable ground for belief of guilt,” as the Supreme Court noted in Maryland v. Pringle. With this standard in mind, most district attorneys will have little trouble establishing probable cause and succeeding in having an arrest warrant issued
“Discretion to file” is one peculiar aspect of the American criminal justice system is the ability of a district attorney to completely forego criminal charges. This is called “prosecutorial discretion.” As the Kansas Court of Appeals noted in State vs. Cope, the district attorney “has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.” Basically, the district attorney has the only say regarding whether to charge a defendant or not.
Obviously, this power brings the potential for severe abuse. Recognizing this, Section 22-2301(2) grants the power to judges to order district attorneys to institute criminal proceedings in “extreme cases.” Kansas law also allows for a grand jury to file a complaint on its own behalf and force the district attorney to go forward with the charges. These exceptions are virtually unheard of, however. Instead, it is much more common place for district attorneys to freely choose to prosecutor nearly all alleged crimes put before them. Thus, even though in theory the state could choose to forego a prosecution, that is unlikely unless the case is extremely weak and that fact is obvious even from the investigation stage.
FROM SUSPECT TO DEFENDANT
Once charges are filed, the suspect officially “becomes” a defendant This may seem like a simply switch in wording, but it actually has very significant and real implications for the accused. Once a charge is filed, the options of eliminating the case are very few. Unlike investigations, which may ultimately never produce any real traction for the state, a filed complaint is quite different. First, the complaint creates a criminal case that is largely a matter of public record. This means any number of people, including potential employers, friends, or family members, can easily find records of the accused and what charges were filed. Second, once a case has been filed it can only be ended in in four ways: by the state, by the court, by a plea deal, or by trial. Notice that the accused has no option of bringing a quick end to filed charges without winning a legal fight for dismissal.
LIMITATIONS OF FILING CHARGES
The longer a district attorney waits to file charges, the more “stale” a case becomes. Witnesses disperse around the country. Some may even pass away or suffer from failing memories. This process can hurt both the prosecution and defendant. Recognizing this, Kansas has adopted a statute of limitations for nearly all crimes. These serve as time limits upon when a district attorney may file a complaint for committing a crime. After the set number of years passes, the suspect will not be subject to prosecution.
In Kansas, murder has no statute of limitations. However, the Due Process Clause of the Fourteenth Amendment would work to prevent a district attorney for delaying charges in bad faith, even for murder. For example, imagine a man is suspected of murder, but the police investigation reveals that three older neighbors of the man claim he was with them when the killing took place. The district attorney decides to wait to file the charge. After thirty years, the last of the neighbors passes away and on the date of that neighbor’s death, the charge against the man is filed, even though no new investigation or evidence has been performed on the case. The Due Process Clause would likely bar that prosecution because the attorney simply waited for the defendant’s defense to “go cold.” To find out more about limitations of filing charges read our page on “How long does a prosecutor have to file charges?”