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ATTACKING CRIMINAL CHARGES BEFORE INDICTMENT

As soon as a person is charged with a criminal offense it is crucial for the attorney to attack the criminal charges before the client is Indicted. An indictment is a formal charging document, which charges an individual with a felony.

Generally, a person is arrested and charged with either a Warrant or a Summons, based only upon a police officer's observations or investigation. If the prosecutor determines that the Warrant or Summons has substance, the Prosecutor will refer the matter to the Grand Jury for an Indictment.

The Grand Jury is made up of individuals from the public that will hear the evidence and determine if there is enough evidence to charge the individual with a felony. The defendant has no right to be present, is not allowed to have an attorney at the Grand Jury and cannot present a defense. A Grand Jury presentation is a very one sided affair.

Most defense attorneys are hired after the Warrant or Summons is issued and before the Indictment. However, most defense attorneys do not do anything until the case is Indicted. Unfortunately, this delayed response is a disservice to the client.

A good defense attorney can often attack the sufficiency of a Warrant or Summons prior to the Indictment, which can often lead to good results for the client and improve the outcome of a difficult case. There are three things that should be done on all Summons and Warrants prior to Indictment to assure the best possible result. Obviously, these strategies will not apply in every situation, but they should be used as often as possible.

HIRE A PRIVATE INVESTIGATOR

Every attorney should hire a private investigator, if possible. The police act as the private investigators of the police. However, defendants rarely hire investigators to interview witnesses, take statements, analyze surveillance angles, and to conduct general investigations.

A defense attorney should be prepared to attack the evidence against the client, by presenting eye witnesses that contradict the police and by having substantive arguments negating the facts where possible. Even if the witness testimony does not completely exonerate your client, if the testimony makes the police look less than credible, it should be used. Where the eyewitnesses contradict the police, these eyewitnesses may be key to your case as they may cast doubt on the police. Prosecutors do not like any evidence that contradicts the police as it makes their cases weaker, and the public does not like police officers who lie even about the small details.

EXCULPATORY EVIDENCE RULE

Many states employ the exculpatory evidence rule, which says that although a defendant is not entitled to present a defense at the Grand Jury proceeding, if the defendant can provide the prosecutor with evidence which clearly negates the defendant's guilt, then the prosecutor is under an ethical obligation to present that evidence to the Grand Jury.

Finding exculpatory evidence is important, and providing it to the Prosecutor is equally important, as a Prosecutor is obligated to present that evidence to the Grand Jury.

In a recent case handled by my office, the Defendant was charged in the Warrant with armed robbery. My office hired a private investigator who recovered surveillance video from the grocery store that was robbed, and was able to interview a number of witnesses who indicated that the Defendant was no where in the vicinity of the robbery. My office turned over the surveillance video and the witness list to the Prosecutor and the case did not make it to the Grand Jury and was dismissed outright. This is a prime example of how to handle exculpatory evidence. The client was exonerated within months instead of years. However, had my office not hired an investigator and not provided the Prosecutor with exculpatory evidence, the Defendant would have been indicated and the case would have taken years to finalize at significant risk to the Defendant.

DEMAND A PROBABLE CAUSE HEARING

A Defendant has a right prior to the Indictment to request a Probable Cause hearing. This strategy is case dependent. Most attorneys waive the probable cause hearing because they are either already negotiating a plea with the prosecutor and do not want to ruffle the Government's feathers or they believe that probable cause is something that can be taken for granted.

Probable Cause is a very low standard, and most attorneys take it for granted. Probable Cause simply means that the State has enough evidence to suggest that the Defendant probably committed the crime charged. Probable cause does not mean the Defendant is guilty, it does not even mean there is enough evidence to convict. It simply means there is more than a 50% chance the Defendant committed the crime.

Assuming the prosecutor is not working out a pre-indictment deal with the Defendant, then it is important to file a probable cause hearing. A probable cause hearing gives the defense attorney the first opportunity to assess the strength of the Government's case against the Defendant. In order to satisfy the standards of probable cause, the Government has to present its witnesses, provide evidence, and provide testimony of the charges. As a defense attorney you can cross examine the witnesses, review the evidence and challenge the probable cause. A defense attorney can gain very valuable information from a probable cause hearing. Witnesses testifying at the probable cause hearing often are the same witnesses that will testify at the trial. The probable cause hearing gives the defense attorney sworn testimony that can be used against the witnesses later in the proceedings. Additionally, if evidence contradicts the probable cause hearing it casts doubt on the prosecution.

In some cases, the Government will rush to Indictment to avoid a probable cause hearing, which often causes mistakes in the Indictment that a defense attorney can use to the client's advantage later in the case.

CONCLUSION

In conclusion, while every case is unique, these steps should be used whenever available. Creating a defense and finding evidence that supports that defense is critical at the early stages while memories are fresh and the prosecution's case is still developing.

SAMPLE PRE-INDICTMENT LETTER

Dear Prosecutor:

My office has been retained to represent the Defendant¹. Defendant has been charged with attempted robbery. It should be noted that the alleged incident occurred in front of Defendant's home. It makes little sense that individuals would engage in a robbery in front of their residence.

As a result of the strange facts of this case, I have commissioned the services of Professional Investigator. Enclosed for your review is a report commissioned by my office and written by Professional Investigator, a detective and former police officer.

As the report indicates the alleged "victim" appears to have been the antagonist of the entire incident. It further appears that eye witnesses did not see my client, Defendant, involved in the incident at all, and my client vehemently denies the allegations.

In the event that your office seeks to indict my client, I would request that you call the individuals listed in the report, as they have exculpatory evidence regarding my client's innocence. As you know, your office has an obligation to present exculpatory evidence to the Grand Jury. See State v. Hogan, 144 N.J. 216, 236 (1996). When the evidence directly negates guilt and is clearly exculpatory the state is required to inform the grand jury. Id. 237 Evidence negates guilt if it squarely refutes an element of the crime. Id. To be clearly exculpatory, an evaluation of the quality and reliability of the evidence is required. Id. At 238. I believe the report enclosed for your review will help you evaluate the evidence and the quality thereof.

Thank you for your anticipated courtesy.

             Very truly yours,

Mario M. Blanch LLC

/s/ Mario M. Blanch

Mario M. Blanch, Esq.