Many people assume that being arrested means they have officially been charged with a crime. In reality, an arrest and the filing of criminal charges are two separate events.
Law enforcement officers may arrest someone based on suspected criminal activity, but prosecutors generally decide whether a case will be filed in court. Under the typical California process, a criminal court case begins when the prosecution files a document called a complaint after reviewing a police report. The complaint identifies the person accused, the alleged offenses, and when those offenses supposedly occurred.
The period between an investigation or arrest and the filing of charges can be one of the most important stages of a criminal case. Decisions made during this time may influence which charges are filed, how serious those charges are, and what evidence becomes available to the defense.
At Simmons & Wagner, our attorneys have more than 56 years of combined experience as former Orange County prosecutors and have tried more than 200 jury cases. That background provides valuable insight into how prosecutors evaluate allegations before deciding whether to move forward.
Who Decides Whether Charges Are Filed?
In most California criminal cases, the District Attorney’s Office represents the government and files charges against the accused. A private individual, alleged victim, or police officer does not personally file a criminal charge in court.
After investigating an alleged offense, a law enforcement agency may submit a police report and supporting evidence to the prosecutor’s office. A prosecutor can then review the available information and determine whether criminal charges are appropriate.
That review may include:
- Police reports
- Body-camera or surveillance footage
- Witness statements
- Photographs and physical evidence
- Phone records, text messages, or social media activity
- Forensic or laboratory results
- Statements made by the accused
- Information provided by the alleged victim
- Evidence that supports or contradicts the allegations
The prosecutor may file the charges originally suggested by law enforcement, choose different charges, request additional investigation, or decline to file a case based on the information available.
A decision not to file charges immediately does not always mean the matter is permanently closed. The investigation may continue, additional evidence may be collected, or the case may be resubmitted for further review.
Can You Be Investigated Without Being Arrested?
Yes. A person may become the subject of a criminal investigation without being arrested or formally charged.
Law enforcement might contact the person for an interview, execute a search warrant, request access to electronic devices, speak with coworkers or family members, or gather financial and digital records. In other cases, the first sign of an investigation may be a phone call from a detective or notice that someone else has been interviewed.
Being asked to “tell your side of the story” can feel like an opportunity to clear up a misunderstanding. However, statements made during an investigation may later be included in a police report and presented to the prosecutor.
Even an innocent person can make a damaging statement by guessing, minimizing, becoming defensive, or providing information without understanding the full scope of the allegation. Speaking with a criminal defense attorney before responding to investigators can help protect against avoidable mistakes.
What Is a Pre-Filing Investigation?
A pre-filing investigation is the period before a prosecutor formally files a criminal complaint in court.
During this stage, the police may still be gathering evidence, or the prosecutor may be reviewing what has already been submitted. Because no court case may exist yet, the matter might not appear in an online court search.
The Orange County Superior Court advises individuals to use its online case or calendar information to verify the status of a criminal filing and the required appearance information. The court also notes that the justice center may be identified on a citation, release document, bail paperwork, or arraignment letter.
Not every investigation provides a long window for defense action. Charges can sometimes be filed quickly, especially when a person remains in custody. That is why contacting an attorney as soon as you learn about an investigation can be important.
How Can a Defense Attorney Help Before Charges Are Filed?
Hiring an attorney before formal charges are filed does not guarantee that the case will disappear. However, it may give the defense an opportunity to act before the prosecution’s view of the case becomes firmly established.
Depending on the circumstances, a defense attorney may be able to:
Prevent Unnecessary Communication
An attorney can communicate with detectives or investigators on the client’s behalf. This reduces the risk that the accused will make an unprepared statement, agree to an interview without understanding the allegations, or unknowingly provide evidence that can be used against them.
Preserve Favorable Evidence
Surveillance footage can be deleted, text messages can be lost, physical evidence can change, and witnesses’ memories can fade. Early defense involvement may help identify and preserve evidence that provides context or contradicts the accusation.
Locate and Interview Witnesses
Police reports do not always include every relevant witness. An independent defense investigation may uncover people who saw what happened, heard important conversations, or can challenge part of the government’s narrative.
Identify Missing Context
An allegation may appear more serious when viewed without information about the surrounding circumstances. Communications, business records, medical documents, location data, or prior interactions between the parties may change how an incident should be understood.
Present Information to the Prosecution
In an appropriate case, defense counsel may submit information for the prosecutor to consider before making a filing decision. This is sometimes called a pre-filing presentation or defense packet.
The presentation might identify factual inconsistencies, unavailable witnesses, legal problems, exculpatory evidence, or important mitigating circumstances. Whether this strategy is appropriate depends on the specific case. Providing information too early or without a clear strategy can expose the defense’s position, which is another reason experienced legal guidance matters.
Prepare for the Possibility of Charges
Even when charges cannot be prevented, early representation gives the defense more time to prepare. An attorney can begin reviewing potential charges, planning for arraignment, addressing bail concerns, preserving evidence, and preparing the client for what may happen next.
Why Does Former Prosecutorial Experience Matter Before Filing?
The most effective pre-filing strategy requires an understanding of how prosecutors evaluate cases.
Former prosecutors know that a filing decision is not based solely on whether an accusation was made. Prosecutors must assess the available evidence, applicable criminal statutes, witness credibility, possible defenses, evidentiary problems, and whether the allegations can be proven in court.
An attorney who previously worked as an Orange County prosecutor may recognize questions such as:
- Does the available evidence support every element of the proposed offense?
- Are important statements inconsistent or unsupported?
- Is a witness likely to be credible under cross-examination?
- Was evidence obtained in a legally questionable manner?
- Is there information missing from the police report?
- Could the conduct support a less serious charge?
- Would additional context materially change the case?
The advantage is not about receiving special treatment from the District Attorney’s Office. It comes from understanding how criminal cases are reviewed from the prosecution’s perspective and using that knowledge to develop a more informed defense strategy.
What Should You Do If You Learn You Are Under Investigation?
If you believe you are being investigated in Orange County, avoid discussing the allegations with investigators, witnesses, coworkers, or the person making the accusation before speaking with an attorney.
Do not delete messages, destroy documents, contact witnesses in an attempt to influence their statements, or post about the situation online. Actions taken in panic can create new legal issues or make the original investigation more difficult to defend.
Instead, document what you know, preserve potentially relevant information, and contact an experienced Orange County criminal defense lawyer as soon as possible.
The absence of formal charges does not mean there is nothing to defend. It may mean there is still time to protect evidence, avoid damaging statements, and begin shaping the defense before the case reaches the courtroom.
Speak With Former Orange County Prosecutors
Scott Simmons and Dan Wagner spent decades prosecuting criminal cases in Orange County before dedicating their experience to criminal defense. With more than 56 years of combined experience and over 200 jury trials, they understand how prosecutors assess allegations, prepare witnesses, evaluate evidence, and decide how to proceed.
If you have been contacted by law enforcement, arrested, served with a search warrant, or told that a case is being submitted to the Orange County District Attorney’s Office, do not wait for charges to appear before seeking legal guidance.
Contact Simmons & Wagner to discuss the investigation and learn what steps may be available to protect your rights, your reputation, and your future.