Monday, February 20, 2012


Despite the three day weekend, I've spent a lot of time advising on criminal law.  Through my years in law enforcement I've developed several good relationships with police officers.  We've exchanged cell phone numbers and whenever I need anything on a case, I call them. 

The reverse is also true.  They call me when they need legal advice on a case or to ask if they have enough probable cause to arrest.  As I thought about my conversations with several detectives this weekend, I thought a post on how a suspect gets charged with a crime is due.

The police have the authority to arrest any person when they have probable cause to believe the person has committed a crime.  The police officers then decide the charges as well.

How do they attain probable cause to arrest?  Some examples:

1) Observe the crime being committed (DWI, drug and gun possession)
2) A citizen informs the police about what happened and the police corroborate the information (robbery call and the victim provides a description.  The suspect is arrested ten minutes later, one block away, and is identified by the victim).
3) Someone reports a crime, but there is no suspect.  The police investigate and develop evidence against a person.  (DNA hit in rape or burglary cases, following the paper trail in an embezzlement case).

The police file the charging paperwork at the time of the arrest.  The defendant is then arraigned on this paperwork shortly after.

The time between the arrest and filing of charges is when an officer or detective usually calls me seeking advice.  The questions are either is there enough probable cause to arrest or what charges should be filed.  Many times I instruct the police to gather more evidence before charging.

Once a defendant is charged and arraigned an ADA looks at the case.  If it's a misdemeanor, the ADA may need to file new charging paperwork if the charges the police filed were incorrect.  If it's a felony, the grand jury indictment will charge the proper crimes so no changes are necessary at the outset. 

The police do not need the district attorney's consent to arrest and charge person.  It is the district attorney's discretion to decide which cases to prosecute, however.  The DA's office can also direct the police to arrest someone who they did not arrest initially.

It's an interesting interplay between the police and ADA's.  Most of the time we are of the same mindset regarding what should happen to a case.  There have been many instances where we disagree though.  At that point, the DA's office has the final say on whether to proseute a crime.

So what was the result from all the phone calls over the weekend?  The police arrested a suspect we've been looking for since the New Year. 


  1. Yay for the arrest! I have always wondered just how collaborative it is between police and the DA's office. Also I'd love a post on what kinds of things you look at in deciding whether or not to prosecute. Besides lack of evidence. I'm thinking specifically of home invasion scenarios where the homeowner harms or kills the intruder or scenarios where a normally law-abiding citizen harms or kills someone in self-defense. Also I know NY has insanely strict gun laws. What do you guys do when you come across and out of stater who was traveling through your state with a gun that is against the law in NY but had no idea that was the case and was not committing any crimes with it or even intending to. In other words, do you prosecute these wrong-place/wrong-time people?