A pre-file investigation is when a criminal defense firm investigates allegations of criminal conduct, on behalf of a client, before formal charges get filed. The objective is to gather exculpatory of favorable evidence to take to the prosecutor in an attempt to prevent charges from being brought in the first place.
The goal of the investigation is to gather enough evidence to persuade the District Attorney (“D.A.”), or other prosecutor, to either:
- File no charges because of a lack of supporting evidence; or,
- File charges of a lesser crime than initially contemplated.
Examples of PFI acts include:
- A criminal defense firm questions motorists and witnesses before the D.A. decides to file charges of reckless driving, per Vehicle Code 23103.
- A criminal defense lawyer consults with a DNA expert before the State decides to file a murder charge under Penal Code 187.
- Prior to the D.A. charging a person with rape, per Penal Code 261, defense lawyers investigate the accuser’s background to see if there is a pattern of lying.
While every legal case is different, it is favorable for a suspect to hire a criminal defense lawyer to conduct a pre-file investigation. It is also beneficial to try to begin the investigative process as early as possible.
When hiring an attorney or law firm to conduct a PFI, a suspect must consider the following:
- The experience of the lawyer or firm with conducting the investigation;
- The investigative resources at their disposal; and,
- The connections the attorney or firm has with police and prosecutors.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What Exactly is a Pre-File Investigation in a California Criminal Case?
- 2. What are the Benefits of an Investigation?
- 3. When Should a Suspect Contact an Attorney to Conduct a PFI?
- 4. What Should a Suspect Consider when Hiring a Lawyer for an Investigation?
- 5. Can Police Question a Suspect when Investigating a Crime?
1. What Exactly is a Pre-File Investigation in a California Criminal Case?
A pre-file investigation is when a criminal defense lawyer or law firm investigates allegations of criminal conduct, on behalf of a client, before formal charges get filed. The term “pre-file” is used because the investigation takes place before the official filing of charges.
During this investigation, the defense attorney or firm may:
- Interview witnesses that the police have spoken with;
- Find new witnesses to question;
- Gather evidence;
- Search background records;
- Collect information on an accuser to cast doubts on his or her credibility; and,
- Consult with experts.
Once the investigation is complete, the hope is that the defense lawyer was able to collect a sufficient amount of evidence on behalf of a suspect that shows he did not commit a criminal offense.
The lawyer then meets with the District Attorney to:
- Present the evidence that was gathered; and,
- Discuss the merits of the case.
After this meeting, the D.A. may decide to take one of the following actions:
- File criminal charges against the suspect;
- End the investigation and file no charges; or,
- Request that the police conduct further investigation and then return the case to the D.A.
Please note that in deciding on what charges to file, a prosecutor often only has police reports to work with. And, these reports give a very biased and limited story on what happened in a criminal case. A pre-file investigation tries to find facts and information that the police ignored, or perhaps overlooked, so that a D.A. can learn of the full story of what took place.
2. What are the Benefits of an Investigation?
A pre-file investigation is of great value because it can result in:
- A D.A. not filing charges against a suspect; or,
- The D.A. filing lesser charges than initially contemplated.
Example: The police are investigating Greg for the crime of sexual battery, under Penal Code 243.4. The investigation is conducted after Lisa went to authorities and told them Greg groped her on several occasions. Greg hires a criminal defense firm to investigate the allegations before the State decides to press charges.
During the pre-file investigation, the defense firm looks into Lisa’s background. The firm discovers that Lisa, on three past occasions, made false accusations involving sexual assault and harassment. The firm then takes this evidence to the D.A. and shows that Lisa has a pattern of lying. The D.A. reviews the evidence and ultimately decides not to file any charges against Greg.
Please note that on the issue of a “lesser crime,” these may include a charge of an “attempted crime.” Or, if a California wobbler offense is at issue, the defense attorney can try to persuade the D.A. to charge a misdemeanor as opposed to a felony.
People typically discover that law enforcement officers are investigating them when the police try to contact them, their family, or their employer, or when a search warrant is executed on their home or business. Another benefit of hiring an attorney on a pre-file basis is that the attorney can do all the talking with the police, and the suspect never has to say anything to them.
Police officers often sound helpful when they reach out to suspects, urging them to tell their side of the story. But the police will twist suspects’ words in an incriminating way. That is why suspects should always claim their Fifth Amendment right against self-incrimination. And when suspects have an attorney, the police may not question the suspect directly – they have to go through the attorney.
Note that police investigations can drag out for a long time, particularly in white collar crimes or in felony cases which have a long statute of limitations. During this time, it is a good idea to have an attorney on retainer to stay abreast of what is happening and to shield the suspect from being interrogated.
3. When Should a Suspect Contact an Attorney to Conduct a PFI?
While every case is different, the general rule is that it is favorable to secure legal representation as early as possible in a criminal matter.
It is also favorable to begin a pre-file investigation as early in a case as possible. This is for the following reasons:
- Events are still fresh in people’s minds;
- Witnesses are more likely to be available to interview and question; and,
- It’s likely that evidence has not been tampered with, which is a crime per California Penal Code 141.
While some suspects may question whether an investigation is really necessary, pre-file investigations are of great value and should be conducted. If an investigation is not done, it is true that charges may not get filed. However, the chances of this happening (or charges getting reduced), are much greater when an investigation takes place.
In addition, consider for a moment, all of the beneficial findings that may result from a PFI. A defense attorney might find that:
- There was no probable cause to support police from stopping a suspect;
- A minor was not read his Miranda rights;
- An accuser has a history of making false reports of crimes; and/or,
- An arresting officer has a reputation for engaging in police misconduct.
These are all things that would benefit a person suspected or accused of a crime. Further, they are not discovered overnight. Rather, it takes time to find them. Starting a pre-file investigation early in a matter ensures that a lawyer and his client have this requisite time.
4. What Should a Suspect Consider when Hiring a Lawyer for an Investigation?
There are three important things an accused should consider when looking for an attorney or firm to conduct a pre-file investigation. These are:
- Investigative resources, and
- Connections with police and prosecutors
A lawyer or law firm experienced in performing a PFI is always better than one with little experience. Experience means that an attorney or firm has conducted past pre-file investigations and they have used them to successfully beat charges.
4.2. Investigative Resources
The quality of a pre-file investigation will only improve when an attorney has several investigative resources at his disposal. Resources mean more avenues to gather evidence. And, this means better chances of discovering evidence that benefits a suspect.
4.3. Connections with Police and Prosecutors
Recall that the main benefit of a pre-file investigation is that it can lead to charges getting reduced or dropped. A defense attorney, though, cannot do this on his own. Rather, he has to persuade police and prosecutors to do this.
Therefore, it is favorable to hire an attorney or firm that has connections to this personnel. Connections will increase the chances that police and prosecutors hear a suspect’s side of the story.
5. Can Police Question a Suspect when Investigating a Crime?
Suspects do not have to answer questions from law enforcement personnel.
In discussing investigations into criminal acts, we must inform that police do conduct their own investigations into allegations of wrongdoing. In the course of these investigations, it is natural for the police to want to question the person suspected of the crime being investigated. Please note, though, that every person in the U.S. has the Fifth Amendment right against self-incrimination and to remain silent.
This means they do not have to answer questions from police or law enforcement agents. Further, if a party chooses to remain silent, this cannot be used against him in court.
For additional help…
If you or someone you know is being suspected of a crime, and are interested in a pre-file investigation, we invite you to contact us for a free consultation. We can be reached 24/7. Call today for legal help.
We have law offices throughout the state of California, including Los Angeles, San Diego, San Francisco, and more.
If suspected of a crime in Nevada, please see our article on “Pre-file” Investigations in Nevada Explained by Las Vegas Criminal Defense Attorneys.