Detective Martinez called at 7:43 AM on a Tuesday. “We need to talk to you about an incident that occurred last weekend. Can you come down to the station?”
Ryan’s stomach dropped. He knew exactly what this was about—the argument with his business partner that got heated, the allegations his ex-girlfriend made after their breakup, the misunderstanding at the store last month. Whatever it was, he was terrified.
His first instinct was to go immediately, explain everything, clear up the misunderstanding. After all, he hadn’t done anything wrong. Talking to the detective would straighten this out, right?
Wrong.
Ryan called us instead. And that phone call changed everything about how his case played out.
Here’s what most people don’t understand: the period between investigation and formal charges is the most critical window in your entire case. What you do—or don’t do—during this time can determine whether charges are filed at all, what charges are filed, and how strong the state’s case will be.
As former prosecutors who collectively filed thousands of criminal charges over nearly four decades, we know exactly what prosecutors look for when deciding whether to charge someone with a crime. More importantly, we know how to influence that decision before it’s made.
Let us show you what happens behind the scenes during this critical period and how you can protect yourself.
The Filing Decision: What Actually Happens
Most people think arrests work like TV: police investigate, make an arrest, and charges are automatically filed. That’s not how it works in Texas.
Here’s the actual process:
Police Investigation: Law enforcement investigates alleged criminal activity. They interview witnesses, collect evidence, and identify suspects. Sometimes they make arrests during this phase. Sometimes they don’t.
Case Submission: The investigating officer submits their case file to the prosecutor’s office. This file includes police reports, witness statements, physical evidence documentation, video or audio recordings, lab results, and the officer’s charging recommendations.
Prosecutor Review: An assistant district attorney or assistant county attorney reviews the file. They’re asking specific questions that determine what happens next.
Filing Decision: The prosecutor decides whether to file charges, what charges to file, or whether to decline prosecution entirely. This decision isn’t automatic—it’s a judgment call based on specific criteria.
Grand Jury (for Felonies): In felony cases, charges must be presented to a grand jury, which decides whether to issue an indictment. The prosecutor presents evidence and witnesses (without defense participation in most cases) and the grand jury votes on whether probable cause exists.
That prosecutor review stage is where your case is won or lost. And most people have no idea it’s even happening.
What Prosecutors Look for When Deciding to File Charges
As former prosecutors in Collin County and Dallas County, we reviewed thousands of case files and made thousands of filing decisions. Here’s exactly what we looked for:
1. Sufficiency of Evidence
The fundamental question: Can we prove this case beyond a reasonable doubt?
Prosecutors need more than suspicion. They need evidence that convinces twelve jurors that the defendant committed the crime beyond a reasonable doubt. We evaluated:
- Witness Credibility: Are the witnesses believable? Do their stories match? Do they have biases or motives to lie? Have they changed their stories? Do they have credibility problems like prior criminal convictions or inconsistent statements?
- Physical Evidence: Is there physical evidence corroborating the allegations? DNA, fingerprints, video footage, financial records, text messages—tangible evidence that supports the charge?
- Statement Evidence: Did the suspect make statements? Were those statements legally obtained? Do they help or hurt the case? Many cases are made or broken by what the defendant said to police.
- Legal Sufficiency: Does the evidence actually prove every element of the charged offense? Sometimes we had evidence of bad conduct but not evidence of criminal conduct.
If the evidence was weak, we declined to file charges or filed lesser charges than the officer recommended. We couldn’t waste court resources on cases we’d lose at trial.
2. Witness Cooperation
Will the key witnesses actually show up to testify?
The strongest case on paper means nothing if your witnesses won’t cooperate. We considered:
- Victim Cooperation: In cases like domestic violence, assault, or theft, does the alleged victim want to prosecute? If they’re uncooperative or recanting, the case becomes much harder.
- Witness Availability: Are witnesses local or out of state? Will they respond to subpoenas? Have they already moved or become unavailable?
- Witness Reliability: Will this witness actually show up to court? Do they have transportation? Are they credible? Some witnesses are great on paper but terrible in person.
Cases with uncooperative victims or unreliable witnesses often got declined or reduced to lesser charges. We couldn’t prosecute what we couldn’t prove in court.
3. Legal and Constitutional Issues
Were rights violated during the investigation?
Even strong cases got declined when constitutional violations occurred. We evaluated:
- Search and Seizure Issues: Was the search legal? Was there a valid warrant, proper consent, or legitimate exception to the warrant requirement? If evidence was obtained illegally, it gets suppressed and the case collapses.
- Miranda Violations: Were statements obtained after proper Miranda warnings? If not, those statements can’t be used at trial.
- Stop and Detention Issues: Was the initial stop or detention legal? If the officer lacked reasonable suspicion or probable cause, everything that followed might be inadmissible.
- Identification Procedures: Were lineups or photo arrays conducted properly? Suggestive identification procedures create problems at trial.
When we saw constitutional problems in case files, we either declined to file charges or filed knowing the defense would likely win suppression motions. Sometimes we filed anyway because of political or public pressure, but we knew the case was weak.
4. Defendant’s Criminal History
Is this a first offense or part of a pattern?
A defendant’s criminal history significantly influences filing decisions:
- First-Time Offenders: We were more likely to offer diversion programs, reduce charges, or even decline prosecution for minor offenses when defendants had clean records.
- Prior Convictions: Repeat offenders got charged more aggressively. Someone with three prior DWIs got charged differently than someone with their first.
- Pattern of Conduct: Multiple arrests for similar conduct (even without convictions) suggested a pattern that influenced our charging decisions.
Clean records helped defendants. Extensive criminal histories hurt them.
5. Severity of Harm
How serious was the alleged offense?
Not all crimes are equal, and prosecutors prioritize accordingly:
- Violent Crimes: Cases involving serious bodily injury, weapons, or vulnerable victims (children, elderly) were prosecuted aggressively regardless of evidentiary weaknesses.
- Property Crimes: Theft, burglary, and fraud cases were evaluated based on dollar amounts and victim impact. Large losses or vulnerable victims increased prosecution likelihood.
- Victimless Crimes: Drug possession, prostitution, and similar offenses were lower priority. These cases were more likely to be offered diversion or reduced charges.
- Public Safety Concerns: Crimes creating ongoing public safety risks (DWI, family violence, stalking) were prosecuted more aggressively than one-time incidents.
Prosecutors have limited resources. We focused on cases involving serious harm or ongoing threats.
6. Community and Political Pressure
Is there public attention on this case?
We hate to admit it, but political and community considerations influenced filing decisions:
- High-Profile Cases: Cases attracting media attention or community outrage got filed even when evidence was marginal. Elected prosecutors face political consequences for declining high-profile cases.
- Victim Advocacy: Cases involving victims with strong community support or advocacy groups backing them were more likely to be filed.
- Law Enforcement Pressure: When officers pushed hard for charges (especially in cases involving assaults on officers or interference with law enforcement), we felt pressure to file.
This isn’t how the system should work, but it’s how it does work. Public pressure influences prosecutorial discretion.
7. Office Policies and Priorities
What is the DA’s office currently prioritizing?
Every prosecutor’s office has priorities that change over time:
- Special Initiatives: When our office launched initiatives targeting specific crimes (DWI, drug trafficking, family violence), those cases received more aggressive charging.
- Diversion Programs: Offices with robust diversion programs are more likely to offer alternatives to prosecution for first-time offenders.
- Resource Constraints: Offices with heavy caseloads sometimes decline marginal cases to focus resources on stronger cases.
Understanding current office priorities helps predict charging decisions.
The Pre-Charge Investigation Period: Your Critical Window
Here’s the reality most people miss: You have more power before charges are filed than after.
Once formal charges are filed and you’re arrested, you’re playing defense. Before charges are filed, you can still shape the prosecutor’s decision.
This is where having experienced defense attorneys matters enormously.
What We Can Do Before Charges Are Filed
When clients contact us during the investigation phase—before formal charges—we can take proactive steps that influence the filing decision:
Prevent Damaging Statements: The first thing we do is stop you from talking to police. Everything you say will be used against you. Officers are skilled at getting people to make incriminating statements while thinking they’re “just clearing things up.”
Gather Favorable Evidence: We immediately begin collecting evidence supporting your side: witness statements, video footage, text messages, emails, financial records, medical records—anything that contradicts the allegations or provides context.
Present Your Side to Prosecutors: We contact the assigned prosecutor and present favorable evidence, witness statements, and legal arguments explaining why charges shouldn’t be filed. This is called a “prosecutorial presentation” or “pre-charge intervention.”
Negotiate Alternatives: We propose alternatives to criminal charges: civil resolution, restitution, counseling, mediation, or other non-criminal solutions that address the alleged harm without formal prosecution.
Address Victim Concerns: In cases with identifiable victims, we sometimes facilitate communication (through counsel) to address the victim’s concerns and potentially resolve the matter without prosecution.
Identify Legal Defenses: We analyze the case for constitutional violations, evidentiary problems, or other legal defenses that would make prosecution difficult. We present these issues to prosecutors before they invest resources in a losing case.
Highlight Mitigation: We provide information about your background, employment, family, community ties, lack of criminal history, and other factors that support a decision not to file charges.
When This Approach Works Best
Pre-charge intervention is most effective in these situations:
- Weak Evidence Cases: When the allegations are based primarily on one person’s word against another with little corroborating evidence.
- Misunderstandings: When there’s a legitimate explanation or context that wasn’t apparent to the investigating officer.
- First-Time Offenders: When you have no criminal history and the alleged offense is relatively minor.
- Civil Matters Mistaken for Criminal: When the dispute is really a civil matter (breach of contract, property dispute, business disagreement) that someone tried to criminalize.
- Cooperative Victims Who Don’t Want Prosecution: When the alleged victim doesn’t want charges filed and is willing to say so.
- Constitutional Violations: When there are clear Fourth Amendment, Fifth Amendment, or other constitutional problems with how evidence was obtained.
We’ve successfully prevented charges from being filed in hundreds of cases by intervening during this critical window.
Real Cases: How Pre-Charge Intervention Changed Everything
Let us give you examples from our practice (details changed to protect client confidentiality):
Case 1: Assault Family Violence Allegation
The Situation: Marcus was accused of assaulting his girlfriend during an argument. She called police. He was arrested. Police recommended assault family violence charges.
What We Did: We interviewed witnesses who were present during the incident. We obtained text messages from before and after the alleged assault. We discovered the girlfriend had a history of false allegations against prior boyfriends. We learned she was angry because Marcus had ended the relationship. We presented all of this to the prosecutor before charges were filed.
The Outcome: No charges were filed. The prosecutor determined the evidence was insufficient and the alleged victim’s credibility was questionable.
Why It Mattered: An assault family violence conviction would have cost Marcus his job as a teacher, his teaching license, and his gun rights. Pre-charge intervention saved his career.
Case 2: Theft Allegation
The Situation: Jennifer was accused of stealing $15,000 from her employer. The company’s internal investigation concluded she had taken the money. Police were called and began investigating.
What We Did: We hired a forensic accountant to review the company’s books. We discovered accounting errors and poor internal controls. We found evidence that another employee had access to the accounts and motive to steal. We presented our findings to the prosecutor and explained the civil dispute between Jennifer and her employer.
The Outcome: No charges were filed. The prosecutor determined the evidence was insufficient and recommended the company pursue civil remedies.
Why It Mattered: A theft conviction would have destroyed Jennifer’s career in finance and made her unemployable in her field. She avoided charges entirely.
Case 3: Drug Possession Investigation
The Situation: Police executed a search warrant at a residence where Ryan was staying temporarily. They found drugs in a common area. Multiple people had access. Police wanted to charge everyone present.
What We Did: We demonstrated Ryan was a temporary guest with no control over the premises. We provided evidence he was staying there only a few days while between apartments. We showed he had no knowledge of drugs being present. We presented this to the prosecutor before charges were filed against Ryan.
The Outcome: Charges were filed against the actual residents. Ryan was never charged.
Why It Mattered: Ryan worked in healthcare and any drug conviction would have ended his career and cost him his professional license.
What to Do (and Not Do) During an Investigation
If you learn you’re under investigation or police want to talk to you, follow these rules:
DO:
Contact an Attorney Immediately: Before talking to anyone about the allegations. Before responding to police calls. Before making any statements. Call us first.
Exercise Your Right to Remain Silent: You have a constitutional right not to talk to police. Use it. Tell officers: “I’m invoking my right to remain silent and my right to an attorney. I won’t be making any statements.”
Document Everything: Write down everything you remember about the alleged incident while it’s fresh. Note dates, times, locations, witnesses, and what actually happened.
Preserve Evidence: Save text messages, emails, social media posts, photos, videos, receipts, and any other evidence relevant to the allegations. Don’t delete anything, even if it seems harmful—destroying evidence is a separate crime.
Make a Witness List: Identify everyone who might have relevant information. Give this list to your attorney.
Follow Your Attorney’s Advice: We’ll guide you through the process and tell you exactly what to do and when to do it.
DON’T:
Don’t Talk to Police Without an Attorney: This is the single biggest mistake people make. They think they can “explain” or “clear things up.” You can’t. Anything you say will be used against you, and police are trained to get incriminating statements.
Don’t Contact the Alleged Victim: If there’s an identifiable victim, don’t call, text, email, or contact them in any way. This can be charged as witness tampering or intimidation, even if your intent is innocent.
Don’t Discuss the Case With Anyone: Don’t post on social media. Don’t talk to friends or family about what happened. Don’t discuss it at work. Assume anything you say to anyone (except your attorney) can and will be discovered and used against you.
Don’t Destroy Evidence: Never delete texts, emails, or social media posts. Never throw away physical evidence. This is obstruction of justice—a separate crime that’s often worse than the original allegation.
Don’t Consent to Searches: You have a Fourth Amendment right to refuse searches. Never consent to searches of your phone, car, home, or person. Make police get a warrant.
Don’t Take a Polygraph: Police will offer polygraphs claiming they just want to “clear you.” Polygraphs are unreliable, inadmissible in court, and used only to get admissions. Decline.
Don’t Wait: The investigation phase moves quickly. Evidence disappears. Witnesses’ memories fade. The prosecutor’s filing decision happens fast. Contact an attorney immediately.
Why Our Background as Prosecutors Matters Here
This is where our experience as former prosecutors is invaluable.
We sat on the other side of the desk for years. We reviewed case files and made filing decisions. We know exactly what prosecutors look for, what concerns them, and what influences their decisions.
We know which prosecutors in Collin County and Dallas County can be reasoned with and which ones file everything regardless of evidence quality. We have professional relationships built over decades. When we present evidence and legal arguments, prosecutors listen.
We also know how to present information in ways that resonate with prosecutors. We speak their language. We understand their constraints and pressures. We frame issues in ways that make it easy for them to decline charges or reduce them.
And we know when prosecutors are bluffing about filing charges and when they’re serious. We know when to push and when to accept.
The Cost of Waiting
Every day you wait to contact an attorney during an investigation is a day you’re at risk.
Evidence disappears. Witnesses forget. Your opportunity to influence the filing decision shrinks. Once charges are filed, you’ve lost your best opportunity to prevent them.
We’ve had potential clients call us after charges were already filed saying, “I wish I’d called you when the detective first contacted me.” By then, the damage was done.
Don’t make that mistake.
This February: Protect Yourself Before It’s Too Late
If you’re under investigation or police have contacted you about an alleged crime, you’re in the most critical phase of your case.
What you do in the next few days or weeks will determine whether you’re charged with a crime, what charges are filed, and how strong the state’s case will be.
Don’t face this alone. Don’t try to handle it yourself. And absolutely don’t talk to police without an attorney.
Get Experienced Prosecutors Working for You
At Lewis & Ashworth, we’re former prosecutors who filed thousands of criminal charges over nearly four decades combined. We know exactly what prosecutors look for when deciding whether to file charges.
More importantly, we know how to influence that decision in your favor.
We provide aggressive pre-charge intervention that has prevented charges from being filed in hundreds of cases. We know how to present your side to prosecutors, gather favorable evidence, identify legal defenses, and negotiate alternatives to criminal charges.
If charges have already been filed, we know how to fight them at every stage. But we’d rather prevent them from being filed in the first place.
Schedule a free consultation to discuss your situation. We’ll evaluate whether pre-charge intervention is possible in your case and explain exactly what we can do to protect you.
Time matters. The investigation phase moves fast. Contact us today.
Two former prosecutors. Nearly 40 years of criminal law experience combined. Personal attention to every case.
Lewis & Ashworth, PLLC
Criminal Defense Attorneys
Plano, Texas
Serving the Dallas-Fort Worth Metroplex