By Mays Law Office
Most people think the time to retain a criminal defense attorney is after they’ve been arrested or formally charged with a crime. But some of the best results happen long before that. In fact, sometimes the best result is a case that never gets filed at all.
We recently saw this happen twice. In two separate cases, the prosecutor reviewed information we provided, talked with us, and ultimately decided not to file charges. In both cases, we were contacted early on, before anyone was formally charged. This is a common situation called Precharge Representation. So let’s break that down.
What is Precharge Representation?
It’s exactly as the name suggests: representation before charging. Precharge representation means hiring a criminal defense attorney after you learn you might be facing criminal charges, but before the prosecutor files the charges. Maybe a police officer called you. Maybe you were asked to come in and answer questions. Or, maybe you just heard about it through the neighborhood grapevine.
No matter how you learn of it, this period before a criminal charge is filed, when a criminal investigation may still be underway, is an important window of time. A criminal defense attorney can contact the police or prosecutor for you, learn your side of what happened, gather supporting evidence, talk to witnesses, and provide all of this information to the prosecutor.
How do prosecutors decide whether to file charges?
The District Attorney’s Office makes that call. Each office in Wisconsin has a different way of deciding whether to file charges. Something that might be formally charged in one county might be declined in another. It depends on the office.
This is called prosecutorial discretion, and it gives prosecutors a lot of room to decide. The prosecutor will look at the police reports, evidence they’ve gathered through their investigation, what the witnesses have to say, among other things. Wisconsin courts have described this as great discretion in charging decisions. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433.
Here’s why that makes this window of time incredibly important: if the only thing the prosecutor has to review is a police report, then he or she is only getting one side of the story. Precharge representation gives the prosecutor the rest of the story, as well as the opportunity for the accused to present their side of what happened.
The Three Parts of a Precharge Case
No two cases are the same, but a precharge case tends to have three main parts.
Timing. Reaching out before charges are filed matters. Once a complaint is filed, the case begins to move through the court system, and it is much harder to get the charges dropped.
Information. This is your side of the story. It’s the evidence that tells your story: documents, videos, emails, text messages, witness information, and more. The work is finding it, organizing it, and presenting the information clearly so a busy prosecutor can understand it quickly.
Conversation. Paperwork and emails alone are rarely enough. Talking with the prosecutor lets them ask questions and hear your side directly, and it lets your attorney know what concerns them.
Here’s how those three parts looked in two real cases.
Client D.Y.’s Story
DY faced some serious allegations: strangulation and suffocation, disorderly conduct, and battery. These are not small accusations and together they carry felony and misdemeanor penalties.
DY contacted us early, before charges were even filed. We got to work right away by contacting the District Attorney’s Office to find out which prosecutor was reviewing the case. Then, we contacted the reviewing prosecutor to see if she was open to talking with us. She was. So, we gathered documents from our client, videos and pictures, and witness information. All of this was sent to the prosecutor, along with a (very) long email describing what really happened and that the allegations were not true.
We followed up with the prosecutor via email and phone call while we waited for a decision to be made. DY’s initial appearance was coming up quickly, and we hadn’t heard from the prosecutor. Luckily, the morning of the scheduled initial appearance, the prosecutor’s office called to tell us they declined to charge. No charges were ever filed.
Client F.E.’s Story
FE’s case looked a bit different. FE was facing four traffic tickets: failure to stop at a stop sign, unreasonable and imprudent speed, non-registration of a vehicle, and fleeing/failing to stop.
We took the same approach with this case. We got involved early and reached out to the team reviewing the case to speak with them before a charging decision was made. We provided additional information about our client that explained FE’s behavior and reaction when interacting with law enforcement.
Again, the prosecutor declined to charge the case and no charges were ever filed.
What these cases have in common
The allegations in these two cases were very different. One involved serious, felony level accusations of violence, while the other involved a traffic stop. But the anatomy of the cases was the same: early timing, a direct conversation with the prosecutor, and additional information we provided that told the rest of the story and not just what was in the police reports.
What should you do if you think you might be charged?
If you’ve been contacted by the police about a criminal investigation, asked to give a statement, or you know charges are coming, consider taking these steps:
- Call Mays Law Office first. Even if you think you did nothing wrong, do not make any statements until you have spoken with an attorney. Many people believe a friendly chat with an officer will clear things up, when in fact it often has the opposite effect.
- Save everything. Text messages, photos, videos, whatever you have. Do not delete anything, even if you think it looks bad.
- Write down names. Make a list of people who were there, who saw what happened, and how to contact them.
- Do not contact anyone else involved. Some people think that speaking with other parties involved will help them resolve this outside of court. Most of the time, it does not. Let your criminal defense attorney handle speaking with the other side.
And remember: timing, timing, timing. The sooner you get a criminal defense attorney involved, the better.
Talk to Mays Law Office if you think you might need precharge representation
If you think you may be charged with a crime, you do not have to wait and hope for the best. At Mays Law Office, our Wisconsin criminal defense attorneys can step in at the precharge stage. We can talk with the police and prosecutor, gather information that tells your side of the story, and work to keep charges from ever being filed. Contact Mays Law Office today to discuss your situation and see how precharge representation could work for you.
This article describes actual cases handled by Mays Law Office; the clients are identified only by initials to protect their privacy. Every case is different, and past results do not guarantee future outcomes. This article provides general legal information and is not legal advice. Reading it does not create an attorney-client relationship. Consult a licensed Wisconsin attorney about your situation.