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    Colorado Felony Domestic Violence Defense Lawyer – Pre-Filing Representation

    Colorado Domestic Violence Defense : The Investigation Stage

    When you are under investigation for a Felony Domestic Violence Charge – si there anything that can be done to stave off potential criminal charges?

    The truth is that actions during the time before you are formally charged can be the most important part of your defense.

    The reason to act before charges are filed is the nature of the investigative process itself

    1. When a “Suspect” becomes a “Defendant”

    As the police begin their investigation and suspect you have committed a crime, but have not yet charged you, you are a target or a “suspect.” When law enforcement send their Colorado General Criminal Case Filing to the District Attorney (D.A.), the D.A. decides whether to file formal charges. If the D.A. files criminal charges against you are now a “Defendant.”

    2. The Investigation Stage

    The front line police who are first to investigate the facts of a case and to prepare Witness Statements, Evidence, and Reports to submit to the District Attorney (D.A.). Unlike detectives, these first responding officers often do not conduct a full investigation with the goal of uncovering the whole truth. Rather these first responders – so to speak -seek sufficient incriminating evidence for probable cause (necessary to charge the “suspect(s))”

    It’s their job (and their slant) to find evidence which points to guilt, not evidence that points to innocence. It becomes immediately clear that many Police Reports only tell half of the story – and obviously they tell the incriminating side of the story pointing towards guilt.

    The reports have “suggested” charges that submitted during the booking or citation charges. These are the charges which these early investigators believe should be charged. Although familiar with the law, police are not lawyers – and once their investigation is complete, they pass on their investigation for a “screening”and final decision by the District Attorney’s Office.

    3. DA’s Screening Function – The Review of the Colorado Felony General Criminal Case Filing

    Once the Police submit their Colorado General Criminal Case filing in Colorado Felony cases to the District Attorney’s Office, the “Intake” or Filing D.A. reviews the reports and makes a filing decision. Note that the D.A. is not bound by the Police’s determination / suggestion of the appropriate charges. To the contrary, the D.A. can file the same, less, or even more charges than the Police suggested. The D.A. comes to a decision after carefully reviewing the facts, the applicable law, and considering the evidence and deciding which charges are justified and most accurately appropriate.

    In considering whether charges are justified and appropriate, the D.A. considers whether they reasonably believe they can obtain a conviction based on the available evidence. D.A.’s generally seek to err on the side of caution by over-charging. They do this for two reasons: first, they can always amend or dismiss the charges later if the law or evidence requires such and second, D.A.’s often file “trumped up” charges as a bargaining chip for future plea negotiations. Thus, later it appears like they are offering a deal to dismiss some charges (which should have never been filed anyway) in exchange for a plea to other charges.

    4. How can you and your Defense Attorney influence the process?

    The District Attorney’s office actually appreciates defense counsel’s input. Because the D.A. making the filing decision has limited time, scant information and often a skewed perspective of the facts, it is so imperative that Defense counsel provide them with whatever missing necessary facts can help [positively] influence the D.A.’s filing decision. As long as these facts are genuinely true, of course they are highly relevant to the D.A. in making the filing decision. A proven philosophy of human nature is:

    It is a lot easier to help someone make up their mind than it is too change their mind once they have already made it up.

    The obvious implication of this it is better to help the D.A. make up their mind to not file charges, or file lower charge, rather than to blindly let them assume the worst, charge the case, and then only after try to disprove the case and change their minds once they already have a mind set as to what happened. Of course, you attorney must use careful discretion. The first rule is “Do no harm” – your attorney should not volunteer [negative] facts that would worsen your situation giving the D.A. facts that would make them file higher charges. A fundamental of criminal defense is that you may remain silent and not assist in your own prosecution.

    The facts that help a D.A. make up their mind about the filing decision include the following:

    The suspect’s personal background information.

    The D.A.’s filing decision can often be influenced positively or negatively simply by the defendant’s background. Positive, helpful facts about the defendant include whether s/he: has any prior criminal record, has a full time job, has a supportive family, has undergone some unusual hardship that explains or even justifies their unusual behavior, and generally whether s/he is an upstanding citizen. To prove this, the D.A. often will take the Defense Attorney’s word, but supporting letters and documentation always help.

    Factual evidence demonstrating the suspect’s innocence

    Sometimes, it is possible (and necessary) to find concrete evidence proving innocence, that the Police Report omits, – and bring that to the D.A.’s attention. This is done with the help of a Private Investigator. Recall that Police often seek just enough incriminating evidence to justify charging a suspect. Thus sometimes Defense counsel needs to conduct a separate Private Investigation to find exculpatory evidence (evidence proving your innocence).

    Research of the relevant law that helps your case

    Last, the D.A. does occasionally get the law wrong. Sometimes, defense counsel can research the law and find statutory or case law authority showing that the provable facts don’t support the proposed charges, or alternatively that the available evidence is likely not sufficient to render a guilty verdict at trial.

    This research not only helps at the start, but it may also help later by setting the stage for the entire case in a beneficial way to you. But it must be given to the D.A. A.S.A.P. When the defense attorney completes their investigation of the case and research of the law, s/he then provides the D.A. with all of this information to “assist” them in their filing decision and based on what is provided, the defense attorney can reasonably request that the D.A.:

    Not file any charges.

    Reduce the charges – i.e. only file some charges, and not others.

    File specific charges as a Misdemeanor and not as a Felony.

    (Some offenses are known as “wobblers” allowing the D.A. to choose whether to file the offense as a Misdemeanor or as a Felony. Obviously, it is far more advantageous to be charged with a Misdemeanor, considered a less serious which carries less stigma, a simpler process and lower penalty than to be charged with a Felony, considered the most serious of crimes).

    All of this work described above is done Pre-Filing, as it is completed before charges are even filed – before your arraignment (i.e. before you ever appear in court). Such a pre-filing defense has enormous advantages.

    First, when justified and done well, it often does work. The effort is totally warranted when it prevents the D.A. from ever filing charges. Then not only does the suspect not get a criminal record, they never have to go through the aggravation of the criminal process. The effort is still fully warranted when charges are reduced.

    In fact, sometimes a good Pre-Filing Defense that reduces the charges can have a more beneficial impact for the defendant right from the start, (regardless of how the case ends) than the best defense for a case that begins with much higher charges. Even if charges are not reduced, and the D.A. still files charges, in any event, the pre-filing defense helps to immediately put your best foot forward by providing helpful information to the D.A. and the court about yourself and the facts to provide a balanced account of the case.

    Moreover, a thorough pre-filing defense ensures that your attorney has adequately “worked up” the case at an early stage and is already fully prepared to defend you should the case go forward to trial.

    Therefore, do not delay. Time is not on your side. Certain actions need to be taken immediately to improve your odds at trial and/or to lessen your sentence. The sooner you get an attorney involved in your case; the better off you will be, regardless of whether you are guilty or completely innocent. You should only hire an attorney who can work on your case immediately and prepare a compelling Pre-filing defense to get your case off to the right start that will hopefully quickly and safely bring your case to the right end.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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