How Is a Charge Filed?

Interviewer: What it takes to prepare for and have a successful trial and how you make the decision as to whether or not to go to trial?

AZ Criminal Law Team Lawyer: The process starts off with formal charging. If a prosecutor believes that law enforcement’s report does have sufficient evidence to justify filing of charges, they’ll return the report to the agency for more investigation. Then the prosecutor can decide whether to file a direct complaint or seek a Grand Jury indictment. Both of these methods constitute formal filing.

The Prosecutor Files a Direct Complaint or Seeks a Grand Jury Indictment

The direct complaint is a document prepared by the prosecutor which specifies the felony offense. A judge reviews that complaint, and if there’s enough evidence they’ll sign it and issue a summons. Then they also issue an arrest warrant.

The other way is Grand Jury indictment. In lieu of filing the direct complaint, the prosecutor can formally charge by presenting evidence to a Grand Jury. The Grand Jury is comprised of nine citizens that are picked at random.

If they believe there’s enough to indict someone on those charges, then they’ll determine that there’s sufficient evidence. If they determine that there’s insufficient evidence, then they don’t deliver an indictment. So there’s two ways that formal charges can occur, either direct complaint or Grand Jury.

The Initial Appearance

The second step would be an initial appearance. When they’re arrested at the scene or it results in an arrest warrant, you’re usually just taken to jail. But within that time after someone’s arrested or there’s a warrant and they’re booked into jail, within 24 hours, they have to have an initial appearance. Other to receive the Grand Jury summons, they’re also required to attend an initial appearance.

The Individual Is Informed of Their Rights at the Initial Appearance

So that’s the first time someone first appears before the judge or the commissioner. That’s where they tell the person that it’s a felony allegation. They’re advised of their right to an attorney.

Conditions of release are established, and a date for a status conference and preliminary hearing are set. If someone’s held in custody without bond, they can be released after 48 hours if there’s no formal charges filed by way of direct complaint.

Negotiating with the Prosecutor: The Status Conference

That’s the next step in the process. As I said, in that next step, it usually gets set for a status conference. At the status conference, this is the first opportunity for the defendant and the prosecutor to resolve the case before proceeding to trial.

The State attempts to negotiate a plea agreement with the attorney, and if someone decides that they get a plea offer they want; they can agree to set it for sentencing. If no plea offer is reached, then it’s either that the status conference is continued, and the preliminary hearing is continued as well, in order for the defense attorney to work with the prosecutor to negotiate some sort of plea.

Refuting the Prosecutor’s Charges: A Deviation

That can be negotiated through a deviation. A deviation is a formal written request that we send the prosecutor outlining any legal issues, litigation, that sort of thing. If we’re able to get our deviation granted, as it’s called, then we may get a better plea offer.

Then it’s up to the client whether they’ll want to accept that better plea offer. If their plea offer isn’t changed, then they get to decide whether they’re going to take it to the next level, which is considered the trial group level, or end up taking that plea and setting it for sentencing.

Interviewer: Is that the first opportunity that a plea is offered? It’s not going to happen any other time before?

AZ Criminal Law Team Lawyer: That’s correct. That would be the first opportunity they would be getting a plea.

The Initial Appearance Is Different from the Arraignment

Interviewer: Is the initial appearance the same thing as the initial arraignment?

AZ Criminal Law Team Lawyer: When someone is arraigned, an arraignment is where the judge enters a not-guilty on the person’s behalf. So an initial appearance is different than an arraignment. An arraignment can happen at a different stage in the process.

The Purpose of the Arraignment Is to Inform the Individual of the Charges

Usually an arraignment is held within 10 days after the filing of the indictment or direct complaint, unless the defendant hasn’t been arrested or has negotiated a plea agreement at the status. The arraignment is for the purpose of informing that person of the charges, again advising if they should have an attorney.

They’re asked to enter a plea to the charges and then a pretrial conference and trial date are set. The arraignment is known as a not-guilty arraignment. If the person intends to plead guilty, the preliminary hearing is waived and a guilty arraignment is scheduled then.

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