Pre-Filing Investigation in California Criminal Cases

A pre-filing investigation or PFI occurs when a criminal defense law firm in California investigates accusations of criminal conduct on your behalf (i.e. an accused party) prior to the prosecutor filing formal charges.

The goal of this pre-filing investigation is to collect sufficient evidence that would help amass the leverage needed to help convince the prosecutor of either of the following:

• To refrain from filing criminal charges on account of a lack of substantiating evidence; or
• To at least reduce the charges to a lesser crime then what may have first been considered.

Examples of pre-filing investigations are:

• A criminal defense attorney asks questions of motorists and witnesses before the prosecutor chooses to file a reckless driving charge under California vehicle code section 23103
• A criminal defense law firm engage as a DNA expert before the prosecution decides to file a rape charge under California Penal Code section to 261.5
• Prior to the district attorney filing an accusation of domestic battery, per California Penal Code section 273, criminal defense lawyers conduct an investigation of the background of the accuser to see if there is a proclivity to lie or fabricate an accusation

Although every legal case is different, it is in the best interest of a criminal suspect to hire a criminal defense attorney to run a pre-filing investigation. The sooner your attorney can start the investigative process, the more momentum he can gather in the direction of masking the evidence and the leverage to push for a DA reject or at least a partial dismissal or reduction of the charges then the prosecutor would otherwise have filed.

When retaining a California criminal defense attorney to run a pre-filing investigation, you must consider these factors:

• The lawyer's experience with conducting criminal investigations;
• The number of resources they have to investigate the matter on your behalf; and
• Their ability to sustain undivided loyalty to you rather than rely on friendships with government officials.

Our California criminal defense law firm will go over the following:

1. What precisely is a pre-filing investigation in a California criminal case?

A pre-filing investigation happens when your California criminal defense attorney runs its own investigation of the allegations of criminal behavior, for example, on your behalf if we accept your case before the prosecutor actually files formal charges against you.

The term “pre-filing” is used due to the fact that your lawyer runs the investigation prior to the government levying formal charges.

Throughout the investigation, your defense lawyer or law firm may do the following:

• Conduct interviews with witnesses with whom police have spoken;
• Discover that there are more witnesses who can be questioned;
• Gather exculpatory evidence;
• Investigate background records;
• Gather information on the party making the accusation that may undermine his or her believability (i.e., credibility); and
• Consult with experts.

Upon the completion of the pre-filing investigation, the hoped-for outcome is that your defense attorney was able to have gathered enough evidence on your behalf to establish that you did not commit a crime.

Your attorney will then meet with the district attorney to:

• Show the exculpatory evidence that was discovered; and
• Discuss the strengths and weaknesses of the prosecutor’s case.

Following the meeting, the prosecutor may then choose to do one of the following:

• Proceed with criminal charges against you;
• Conclude its investigation and no longer filed charges against you; or
• Request that the law enforcement agency working with the prosecutor conduct further investigation and then generate its findings back to the district attorney.

In deciding which charges to file, a prosecutor can only go by those police reports that he has to work with. Unfortunately, those reports often contain a narrative that paints you, the suspect, in the worst possible light. A pre-filing investigation gives your criminal defense lawyer an opportunity to gather those facts and pieces of information at the prosecutor either ignored or overlooked so that the government can have a full scope of what actually happened, potentially allowing your attorney to credibly argue for a dismissal, i.e., DA reject.

2. What are the benefits of running a pre-filing investigation?

A pre-filing investigation can make the difference between the criminal charge or indictment against you moving forward or the prosecutor deciding not to file any charges against you (or at least less severe charges).

For example, let’s say the police are investigating Doug for sexual battery, under California Penal Code section 243.4. The investigation is conducted after Clarice goes to the police and reports that Doug groped her several times. Doug hires a California criminal defense law firm to run an investigation of the accusations before the prosecutor chooses to file charges against Doug.

During the pre-filing investigation, Doug’s criminal defense lawyer research is Clarice’s background. The attorney discovers that Clarice, on for prior occasions, levied false accusations that involved harassment and sexual assault. The attorney then shows the prosecutor this evidence, proving that Clarice already has a proclivity to lie and fabricate. The prosecutor reviews the defense attorney's evidence and ultimately concludes no cabs it won’t be filing any charges against Doug.

You should note that on the matter of “lesser crimes“, these may include a charge of an “inchoate crime“, i.e., an “attempted crime.” Alternatively, if a California wobbler offense is at issue, your criminal defense law firm can attempt to convince the prosecutor to file a misdemeanor charge as opposed to a felony.

3. When should a criminal suspect reach out to a lawyer to conduct a pre-filing investigation?

It’s true that every case varies from one to the next. Having said that, the general rule is that it is in your best interest to get legal representation as early as possible in any criminal case.

That means it is in your best interest to have your lawyer run a pre-filing investigation as soon as possible. Why? Here’s why:

• People generally still have a fresher recollection of the events;
• Witnesses are much likelier to be available for your attorney or his investigator to interview and question them; and
• It’s also likelier that evidence hasn’t been tampered with, which, by the way, is a separate crime under California Penal Code section 141.

While some suspects may be skeptical as to whether an investigation is really needed, pre-filing investigations can make the difference between the prosecutor moving forward with catastrophic felony criminal charges that can result in prison (as well as lifetime sex offender registration if it is a sex crime) and the prosecutor either not filing any case at all or filing a much more “attenuated” or “reduced” case against you. It is foolish to discount the tremendous value that a pre-filing investigation can have.

Additionally, you’re pre-filing representation criminal defense attorney may be able to discover the following, which could mean the difference between the prosecutor filing the worst version of its case against you or no charges at all:

• Lack of any probable cause a reasonable suspicion for the police to have stopped you or approached you in the first place;
• A failure to have read you your Miranda rights;
• The accusing party having a track record of having filed several false police reports if you or none of which resulted in any actual charges or convictions; or
• The police officer who arrested you having a track record of having engaged in police misconduct.

All of these are findings that could greatly undermine the government's case against you but which carry their greatest worth earlier on in the case. Why? Because it helps generate early momentum in the direction of fighting and winning your case. Failure to do those things could result in precisely the opposite.

4. What should a criminal suspect consider when thinking about hiring a criminal defense lawyer to run a pre-filing investigation?

There are four pivotal things you art to consider when looking for a criminal defense attorney to represent you for a pre-filing investigation:

• Experience
• Investigative tools
• Resourcefulness
• Undivided loyalties

Experience

A lawyer or law firm possessed of a great deal of experience and having performed pre-filing investigations is always better suited than a lawyer or law firm who does not have such experience.

Investigative tools

The caliber and effectiveness of a pre-filing investigation may depend on the types of investigative tools and resources at your lawyer's disposal. Each resource is an additional “ Avenue“ by with your attorney can gather exculpatory evidence. This, of course, raises the chances of favorable evidence being found that benefits your case.

Resourcefulness

An attorney can have a multitude of resources and yet fail to be resourceful with the tools that he has. A degree of cunning and creativity are required to go above and beyond simple investigative equipment. Think about it: the prosecutor is largely pulling all the stops to find evidence that incriminates you. Your attorney must be possessed of a similar relentlessness in helping to uncover any and every conceivable route by which admissible evidence that favors you can be found.

Undivided loyalties

Some attorneys like to tout their “connections” as being former prosecutors. Although, in theory, they may be able to leverage those relationships in your favor, in the “real world”, given the realities of human nature, it is just as likely that some of those attorneys may not want to “push the envelope” or “rock the boat” too hard in a way that may exhaust their ability to rely on their former colleagues in the DA’s office for leniency to their other clients, in effect, dividing their loyalties between you as their client and their buddies in the prosecutorial bureaucracy. Instead, you want an attorney with integrity whose only loyalty is to you and whose high level of resourcefulness and investigative skill means that such “connections” are wholly unnecessary.

5. If you are suspected of a crime, can the police interrogate you?

If you are suspected of a crime, you are not required to answer questions from the police.

When talking about investigations into criminal actions, it’s important to note that police do run their own investigations into allegations of misconduct or wrongdoing. In the course of such investigations, police are generally inclined to want to interrogate you in order to yield an incriminating statement, thereby making their job easier and helping establish proof of your guilt. However, every person in the United States has the right against self-incrimination and to remain silent pursuant to the fifth amendment to the U.S. Constitution.

What that means is that you don’t have to answer any questions from cops or other law-enforcement agents. Moreover, if you choose to remain silent, the prosecutor cannot use your silence against you in court.