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Law & Schriener, LLC Aug. 10, 2023

Is it Possible to Perform an Aggressive Pre-Charge Investigation? If so, What Does That Entail?

An aggressive pre-charge investigation will depend on how soon you know that there is a law enforcement investigation underway. The problem is that a lot of times, you don’t know until you are arrested. That’s true in so many situations, including traffic stops and DUIs. Child pornography cases fall slightly outside this category, because they almost always involve the initial seizure of computers after a “knock-and-talk” interview, at which point, no charges are pending and the law enforcement investigation has just begun. Sometimes, in child pornography cases, the police will come with a search warrant, in which case you have no choice but to let them in. The point being, however, that these types of cases (child pornography possession) are so numerous these days that it’s not uncommon for a computer to sit for a long time before the forensic examiner gets the chance to examine it and present his report to the appropriate law enforcement agency. It gives you some time to actually get significant work done pre-charge.

Since there is such a long lead time in a lot of these cases, there is plenty that can be done for an early investigation. There is a computer forensic expert that I work with all the time whose work is invaluable. It costs more money because we have to hire him as an expert, but it’s worth every penny in my humble opinion. That’s because law enforcement forensic examiners only look for evidence of a crime. They are only looking for images that they believe are illegal. Our forensic expert, on the other hand, looks for all kinds of information. As a result, he often finds things that contradict the government’s forensic examiner’s findings or discovers information that could mitigate or negate the charges. Psychological evaluations can also be really important. Unfortunately, they also cost money because you have to hire a mental health care professional.

Police reports are generally unavailable until a case has gone on to the prosecutor, but it’s sometimes very helpful to hire a private investigator as soon as we have discovery and the police report. A private investigator can go to the scene and take photographs. I like to go personally to take a look at the scene because it orients me and improves my cross-examination of the cops. However, I can’t really investigate the case because I would be making myself a witness by doing so, and I can’t be both witness and lawyer. That’s why it’s helpful to hire a good private investigator, and there are people that we work with in that regard as well. Interviews with witnesses can be very helpful. The sooner the investigation begins, the better, because people’s memories will be fresh and things will still look the same as they did on the date of the incident.

What Do Plea Offers Generally Look Like For Criminal Defendants?

The type of pleas that are offered depend almost totally on the jurisdiction in which you are charged. Typically, federal prosecutors will not – and really cannot – offer a specific sentence in return for a guilty plea. They will, however, typically agree to a United States Sentencing Guidelines offense level calculation, which can actually give your lawyer an opportunity for meaningful plea negotiation. In state court, you will usually get a “recommendation” or “rec.” That means that the prosecutor will offer a specific sentence in return for a plea. This can be a really good thing, as it provides certainty. Typically, if you plea pursuant to a recommendation, you will receive the recommended sentence, and you will receive it on the day that you plead.

In federal court, you can occasionally get lucky enough to get a pre-trial diversion agreement through the U.S. Pre-trial Services Office and the U.S. Attorney’s Office. If you receive pre-trial diversion, then you are given a period of 12 to 18 months to follow a set of conditions, much like being on bond. This type of diversion is typically only contemplated in cases where there are no prior convictions, or at least no significant prior convictions, and the crime is a monetary one, where there is a fairly small amount of restitution which can reasonably be repaid within 12 to 18 months. If you successfully complete the diversionary period, then the case is dropped.

Illinois has something very similar, which is court supervision. With court supervision, you plead guilty and are placed on probation, but no judgment is entered. If you are successful at the end of the probationary period, then the case is dismissed and you are discharged. I have to say that these alternatives are very rare.

Many defendants in state court, whether first time offenders or not, will get a recommendation for disposition. Depending on the jurisdiction, you may get this automatically or you may have to request it. On a first time offense, they will usually recommend that you plead guilty to the charges and receive a suspended imposition of sentence. A suspended imposition of sentence means that you plead guilty, get put on probation and are given a backup sentence of time if you violate the conditions of your probation.

For more information on Aggressive Pre-Filing Intervention, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.


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