Pre-file Investigation
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What is A Pre-File Investigation?
Before any formal charge is ever brought against you, there is often a window of time in which police and prosecution investigate the validity of the accusation brought forth, and what charges– if any– they might wish to levy. This is especially true in cases when the initial accusation is being brought forth by a third party against the accused, or if there is a larger window of time between when the alleged crime took place and when the allegations were levied (more complex white collar crimes are a good example of this). While the accused will usually be informed of when this type of investigation is underway to some extent, the lawyers at Saffari understand that the accused is all-to-often left in the dark about what is going on, and you as the person in the middle of it all might have feelings of confusion, frustration, and alienation. However, this window of time– as investigators are collecting evidence– is an opportunity to reach out and have a lawyer conduct what is known as a ‘pre-file’ investigation (PFI) on your behalf. This term describes the process in which a defense attorney investigates the charges before those charges are ever formally filed against the client. This is a preventative measure to possibly have the charges lessened or dropped based on the finding of the investigation. The PFI is conducted on the client’s behalf to gather evidence and information, analyze the legitimacy of the potential charges, and reduce the charges brought forth or have them dropped altogether. It may not occur to some but the time between a preliminary investigation, and being charged with a crime is a window of opportunity; if the suspect opts to wait to contact a lawyer until those charges are presented, they are only forgoing a vital part of the legal process. In many instances, one’s best at getting ahead of the situation is to lessen those charges in the first place, or prevent them from being brought forth altogether, both of which are possible outcomes, especially when a lawyer is brought on early. Consider for a moment that in the early investigative stages, the prosecution is weighing their options, determining how strongly they want to commit to levying certain charges, and what is worth pursuing. This is especially true in cases where the defendant is being accused by a third-party. Despite what is often portrayed in film and television, in the state of California, the alleged victim or accuser can only make police aware of a situation, but they do not have the legal capacity to press charges; that type of communication always goes one way, from police to prosecutor who then decides on the most appropriate action to take based on the evidence collected. If the alleged suspect has little to no prior criminal record, an attorney may find it easier to convince the prosecutor that a lesser charge is more suitable, especially in wobbler cases. Or they might convince the prosecutor that an aggressive pursuit towards a specific crime is not worth the time or effort. With that, the earlier you get a lawyer involved in the process to conduct a PFI , the better chances you have mitigating the charges brought against you, even if the case does eventually make its way to court.
During this preliminary investigative stage, police will reach out to you or a loved one to inform you that such an investigation is underway. When that happens, get in touch with a lawyer as soon as possible. Even while the process can be intimidating, it is important to realize that during this time, no charges have been officially filed against you, and you still maintain certain rights. Hiring an attorney during this time will shield the client from answering directly to law enforcement or being taken advantage of. During questioning, or at any step in the investigative process, police may try to speak to you in an understanding, helpful tone, trying to gather whatever information they can, as they present themselves as being on your side. They are not. Your best and truest form of protection comes in having an attorney who understands you and your case. Your lawyer at Saffari is there to be your advocate and protect you, and see you through to the end.
How is a pre-file investigation conducted?
During a preliminary investigation, an attorney or firm has several routes available to them. Interviewing witnesses already examined by police can lead to new, more favorable, information for the client. Oftentimes, witnesses are more open to disclosing certain information with someone other than law enforcement. Police typically only ask questions with the singular focus and intention of collecting information favorable to the prosecution, and therefore, their questions are tinged with that innate bias. The police do not conduct interviews to hear all sides of the story. They are there to collect evidence for the prosecutor or D.A. In contrast, a good lawyer will know how to look at information more holistically, and will conduct their interviews and pose their questions in such a way. It is important to note, when deciding which charges to present, the D.A. will only have the information from the police report to reference. These reports will only provide a one-sided, limited view on the events that have transpired. A pre-file investigation will examine the possible facts and details which have been omitted or overlooked, intentionally or otherwise. Your lawyer may also opt to interview new witnesses.
During the pre-file investigation, your lawyers at Saffari will also be examining background records; if you have no criminal history– or even just minor infractions– this can be used in your favor. Again, during the investigative process, prosecutors are weighing how much they want to pursue these charges. A minimal criminal background may signal to investigators that there isn’t much to substantiate bringing these charges forward or it’s not worth taking the case to trial. Your lawyer will also examine the background of the accuser, if there is one. A criminal background, a tendency to lie and extort, or a past personal relationship with the accused can implicate discrepancies on the accuser. Even if the case does go to court, those kinds of details that were accumulated during the PFI will only serve you well. If there are ‘experts’ whose education and background are pertinent to the case, you lawyers at Safari may opt to interview them as well. The goal of the defense lawyer, upon completion of the pre-file investigation, is to have gathered sufficient evidence to demonstrate that the suspect did not commit a criminal offense, or that the offense was less severe than originally considered. Your lawyer will have direct contact with the DA or prosecutor to discuss the merits of and severity of the charges. For instance, a defense attorney could convince the DA that a misdemeanor, rather than a felony, is a more appropriate charge given the newly accumulated evidence. If the latter is found to be true, the alleged suspect could avoid more serious fines, or time spent in prison. If the case does go to trial, judges are bound by certain parameters of what kind of sentences they can carry out. Reducing the charges in the first place, before it goes to court, is one’s best chance at mitigating sentencing.
Do Police Have to Read Me My Miranda Rights While a Pre-File Investigation is Underway?
The issue of being read Miranda Rights is often a point of confusion, especially since police have different guidelines for different interactions with the public and alleged suspects. Detaining an individual, holding an individual, or simply questioning one during a ‘Terry Stop’ all hold different guidelines and procedures therein. Essentially, one’s Miranda Rights are there to protect you from self-incrimination, and being read those rights is only necessary in the event of a formal interrogation where such self-incrimination might occur.
Being read one’s Miranda Rights is only a necessity when both of the following are true:
- The suspect is in custody and not free to leave,
- Police intend on conducting an interrogation once an arrest is made.
During a preliminary investigation, neither of the aforementioned prerequisites hold true: you are not in police custody and are not being interrogated. In short, your Miranda Rights are to protect you from self-incrimination, not from having evidence gathered against you, and it is not a shield from routine legal proceedings. Even during an arrest, police do not have to read you your Miranda Rights if the officer(s) in question have no intention of conducting any further interrogation. However, not being read your Miranda Rights during an investigation does not mean that those rights are– even at that time– revoked. You always have the right to remain silent, even if that right is not explicitly stated. With a few notable exceptions, you are never obligated to answer questions posed to you by the police. However, while detained by police, you may be asked routine booking questions. These are standard, procedural questions you will likely get asked when being fingerprinted or photographed. You will not be read your Miranda Rights during this type of questioning because these types of questions are not meant to be a means to gathering incriminating information. However, during a pre-file investigation, there are plenty of situations in which an alleged suspect could be having informal conversations and encounters with police, during which– much like with booking questions and other less formal procedures– said suspect will not be apprised of their Miranda Rights. Therefore, even when police are not specifically out to gather evidence against you, the possibility of self-incrimination is still always present. Your lawyer at Saffari will mitigate and protect you from these types of interactions in which you could inadvertently incriminate yourself. Police will never remind you of your rights if they do not have to. Having a lawyer by your side to advise and shield you is a crucial step in protecting yourself.
When Should You Contact an Attorney to Conduct a PFI On Your Behalf?
Your team at Saffari will want to help as soon as they can. Whatever the nature or severity of the case, your lawyers will advise you on getting your own pre-file investigation underway as soon as possible. Everyone should be protected in the preliminary proceedings, and everyone deserves a fair shake when under investigation.
A prompt investigation will increase the likelihood that the charges against you will be withdrawn or reduced, favorable evidence is less likely to be tampered with, and events are still fresh in the minds of those involved. Getting a lawyer involved in the process sooner increases the likelihood– for example– of discovering that police lacked probable cause to detain a suspect. This is called an ‘unlawful detention,’ and it broadly means that an officer acted without legal precedence in preventing one or more persons from leaving their presence– a violation of one’s Fourth Amendment right. Police interactions can often contain one more discrepancies like this, and such discrepancies coming to light can be favorable in helping charges be mitigated or dropped. Police conduct while accumulating information for the DA has a huge role in what evidence can actually be used. Your team at Saffari will be able to identify those discrepancies to help you bring about the best outcome during the investigative process.
Who Can Police Reach Out to– and Gather Testimony from– During an Investigation?
Generally speaking, investigators can reach out to whomever they deem a person relevant to a case, and there’s no real contingency to prevent them from reaching out to a certain type of individual, be it the spouse of the alleged suspect, ex-girlfriend, relative etc, so long as it is done within the bounds of the law. To that end, police enjoy a wide amount of discretion in this area. Immediate family members and spouses have the potential of being questioned by police, either formally or informally. However, that does not mean that persons bearing certain relationships with the suspect do not have some rights when it comes to being questioned. California, for instance, recognizes the marital/spouse privilege, meaning that your husband/wife/spouse reserves the right not to testify against you, and further that said spouse cannot be compelled to disclose private correspondences between you (this does not apply to situations in which something was said loudly, and in public, during which, one’s right to reasonable privacy does not apply. Further, this does not apply to acts– or to the fact that communication simply occurred at all). This type of privilege falls under the umbrella term called ‘evidentiary privilege,’ which means you have the right not to testify against a spouse, in addition to preventing someone from testifying against you. However, this type of privilege only applies when that person is still jointly married to you at the time such a testimony would take place. In other words, ex-wives and ex-boyfriends & girlfriends could testify against you should the prosecution choose. This also means that spousal privilege is revoked if a divorce occurs during the time of the investigation. Spousal privilege does not apply to cases in domestic violence cases in which the spouse is the accuser, or in divorce cases.
When it comes to parents and their children, California law states a child of the defendant can neither be “prohibited nor compelled” to testify in court. In essence, in the United States, no such privilege or protection exists from preventing a child to testify or give information on their parent, whether or not said child is a minor or an adult. In an investigative context, police do have the right to question a child in regards to their parents actions. And unlike the evidentiary privilege that covers spouses, children do have to disclose correspondences with their parent or parents if asked.
Suffice it to say, evidentiary privilege applies to your lawyer, and anything you say to them in confidence is protected. This included former lawyers of clients.
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What Should I Consider When Hiring a Lawyer to Conduct a PFI?
Being under investigation can be a daunting and isolating experience. It’s easy to feel out of the loop. Compounded with the already stressful process is the common complaint amongst clients about a lack of communication between them and then attorneys. Not only does the Saffari Law Group have a well-earned reputation of being fierce advocates for their clients, but they pride themselves on letting their clients in on what’s happening. Common factors to also consider when deciding on a lawyer to represent you are experience, investigative resources, and that firm’s accessibility to police and prosecutors. Not every law firm will automatically have the infrastructure when it comes to resources, let alone the professional relationships with police and prosecutors, which is there to streamline the access of information and evidence. The success of pre-file investigations hinges on not only a defense attorney’s means of convincing what charges a prosecutor should drop or lessen, but a strong reputation could mean that a prosecutor decides that the pursuit of certain charges aren’t worth the effort.Consider the factors that speak to a specific attorney or firm’s experience. Evaluate not only the quantity of pre-file investigations they have conducted, but the success rate of those investigations. Much like at Saffari, some firms specialize in PFIs, and have a team committed to these exact situations and those resources ready to go once you call.
If, however, the prosecution should ultimately decide to pursue certain charges, your defense attorney will have a hand in mitigating the situation on your behalf. In California, the formal charge will come in the form of either an infraction, misdemeanor or felony. Since many charges fall under the ‘wobbler’ law in California, even if the suspect is ultimately convicted, a judge may exercise their discretion and sentence the accused based on a lesser charge. Whatever the case, discrepancies found in how evidence was gathered, the integrity of the evidence, or in the police officers’ actions and conduct during the investigation, will always have a favorable impact towards the defendant, even once the case has reached trial.
