The Charging Conference

Determining Felony and Misdemeanor Charges

The prosecuting attorney has more discretion than the judge!

The prosecutor can decide not to charge a crime, decide to charge someone arrested for a felony with a misdemeanor, can agree to a pretrial diversion of the case, or can recommend that a defendant be released without bail or on a low bail. The prosecutor can defer charging a person until he has more evidence or until he hears from witnesses about the case rather than only summaries from investigating officers or agents. He can review documents and other evidence in addition to what he has been shown by investigators. He can decline to submit a case to a grand jury.

For these reasons the charging conference may be the most important time for a potential defendant to be competently represented. The defendant’s lawyer should always request a charging conference; he should prepare for the conference as though he was preparing for trial. He should know and be able to explain the defendant’s previous contacts with the law both as a juvenile and an adult. He should have prepared an outline of reasons why it would be unjust, unfair or unreasonable to charge the defendant with a crime and back up these reasons with a detailed social history, documentary support and witnesses who cannot be impeached. At times it may be appropriate to ask a psychologist, social worker or drug counselor to appear for the defendant at a charging conference; at other times the wife or parent of an accused can provide critical support for a favorable discretion decision by the prosecutor.