HOW ARE CRIMES CHARGED?
Nov. 30, 2014
In order to get charged with a criminal offense in Colorado, the police are going to be involved in some way. This means any law enforcement agency.
One common way a person may get charged is if a police officer directly observes a person engaged in a criminal act. Another way is if a citizen reports a crime to the police, and the police go out and investigate. These are the most frequent ways a criminal investigation begins.
It’s important to correct a common misconception that is perpetuated by Hollywood: we often hear about one person “pressing charges” against another person, as if to suggest that the reporting party has final say over whether or not criminal charges stick. In Colorado, this is a mythical term. The government, through the police, is the only entity that can charge someone with a crime. If the person who initiated the complaint wants to recant and drop the charges, he or she can let that wish be known to the police or to the district attorney, but it would be up to one of those agencies to actually take action and make that decision. This is very common in domestic violence cases. Here’s an example: A wife calls the police to report her abusive husband. Husband gets arrested. He loses his job. They have no income. Wife calls the district attorney and says she made the whole thing up and wants the case dismissed. The district attorney can take wife’s opinion into account, but they can still continue to prosecute even if it’s against wife’s wishes. The wife does not have the power to stop it.
The police cannot take too much time to charge a case. The police are subject to a statute of limitations. Statutes of Limitation are written laws passed by a legislative body in common law systems to restrict the maximum time after an event that legal proceedings may be initiated.Once the period of time specified in a statute of limitation passes, a claim can no longer be validly filed. This means that the police can conduct an investigation, but they must charge an individual within the prescribed period of time in the statute of limitations.
The police must have probable cause to arrest someone. The definition of probable cause is met when the police have a reasonable belief that a crime was committed, and that the actor committed that crime. For lower level crimes such as misdemeanor or traffic cases, the police issue the suspect a summons or citation to appear in court. This means that the subject does not have to be arrested or post bond. The summons is basically a court approved document that commands someone to appear in court to answer for the offense. If the person fails to appear, a warrant can issue for their arrest.
The police can also apply for the issuance of a warrant in some cases. This happens in cases where follow up investigation produces evidence that provides the police officer with probable cause that may not have existed when the police were first notified that criminal activity may have taken place. Warrants also get issued if the whereabouts of the subject are unknown. If a warrant is issued against a suspect, and that suspect is later contacted by the police during a routine traffic stop or via some other means, that person will be arrested.
The police can also arrest someone without a warrant. If they have probable cause to believe that a person has committed a crime, they can arrest that person without a warrant. Generally, they will create an affidavit justifying the warrantless arrest which lays out the grounds for probable cause. This affidavit will be reviewed by a judge after the fact to make sure that probable cause does indeed exist. The person arrested will still have to be fingerprinted, photographed and booked, and may have to post a bail bond. This all can happen before a judge reviews the probable cause affidavit.
Probable cause can be contested, but it usually happens well after the suspect is arrested. If a judge reviews the warrant affidavit and does not sign off on probable cause, the action against the person arrested will be dismissed. This may not happen until a later court proceeding. For serious felony cases in Colorado, defendants have a right to a proceeding called a preliminary hearing. This is a hearing that is like a mini-trial. The judge hears evidence in the case, usually only from the filing detective. The judge will then decide whether or not probable cause exists for the case to be set for trial. If the judge says there is no probable cause, the charge gets dismissed. This is often a formality though- most preliminary hearings are waived by the defendant in order to negotiate a plea deal with the district attorney.
One important thing to note about probable cause is that it only means there is enough evidence to charge someone with a crime. In other words, it is enough to get someone in the door of the criminal justice system, but it is not enough for the person to be adjudicated. A charge is merely an accusation. The defendant charged is presumed innocent until proven guilty beyond a reasonable doubt. This means that the defendant must plead guilty to the charge for it to become a conviction (a proven charge), or they must be found guilty beyond a reasonable doubt by either a judge or a jury for it to stick. The district attorney has the power to dismiss, add, or amend charges at any time, but in order for them to become convictions, they must be admitted to in court via a plea of guilty, or proven in court beyond a reasonable doubt.