How Colorado Prosecutors Decide Whether to File Criminal Charges

How Colorado Prosecutors Decide Whether to File Criminal Charges

A Former Colorado Prosecutor Explains What Really Happens

Most people assume that once the police arrest someone, criminal charges automatically follow.

That isn’t how Colorado’s criminal justice system works.

Police officers investigate crimes and may make arrests when they believe they have probable cause. But in Colorado, prosecutors—not the police—have the final authority to decide whether criminal charges will be filed. A district attorney may file the charges recommended by law enforcement, reduce the charges, add charges, request additional investigation, or decline to file charges altogether.

As a former Colorado Deputy District Attorney, I spent years reviewing police reports, evaluating evidence, interviewing officers, speaking with victims, and deciding whether criminal charges should be filed. It was one of the greatest responsibilities I had as a prosecutor because a charging decision can dramatically affect someone’s life long before a jury ever hears the evidence.

Understanding how prosecutors make these decisions can help you better understand your own case—and why having an experienced criminal defense attorney involved early can make a significant difference.

A Prosecutor’s Duty Is to Seek Justice

Many people believe a prosecutor’s job is simply to convict people.

That isn’t true.

A prosecutor represents the people of the State of Colorado—not an individual victim, not the police, and not a political agenda.

Ethically, a prosecutor has a higher duty than simply winning cases. A prosecutor’s obligation is to seek justice. That means fairly evaluating the evidence, protecting the rights of victims, respecting the constitutional rights of the accused, and ensuring criminal charges are supported by both the facts and the law.

That responsibility requires asking more than:

“Can I file this case?”

The more important question is:

“Should I?”

That distinction is critical.

The First Question: Is There Probable Cause?

The first legal question is whether probable cause exists.

In simple terms, prosecutors must determine whether there is sufficient evidence to reasonably believe:

• A crime was committed; and

• The accused committed that crime.

Probable cause is a relatively low legal standard.

It does not require proof beyond a reasonable doubt.

However, simply because probable cause exists does not necessarily mean prosecution is the right decision.

Can the Case Actually Be Proven?

One of the biggest misconceptions is that prosecutors should file every case where probable cause exists.

That is not how responsible prosecutors should approach their job.

A prosecutor should also ask:

Can this case actually be proven beyond a reasonable doubt to twelve jurors?

That requires a careful review of all of the evidence—not simply accepting allegations at face value.

Among other things, prosecutors should evaluate:

• The credibility of witnesses.

• Whether witness statements are consistent.

• Whether physical evidence supports the allegations.

• Body camera footage.

• Surveillance video.

• DNA or forensic evidence.

• Text messages.

• Cell phone records.

• Medical records.

• Whether evidence contradicts the accusations.

• Whether constitutional violations could prevent important evidence from being admitted at trial.

The strength of the evidence—not merely the seriousness of the accusation—should drive charging decisions.

Corroborating Evidence Matters

Experienced prosecutors understand that allegations should be tested whenever possible.

Strong criminal cases are often supported by corroborating evidence.

That evidence may include:

• Independent eyewitnesses.

• Video recordings.

• Admissions by the accused.

• Physical injuries.

• Scientific testing.

• Electronic communications.

• Financial records.

• Photographs.

• Digital evidence.

The stronger the corroboration, the stronger the prosecution.

When evidence is inconsistent, incomplete, or raises legitimate questions, prosecutors should carefully consider whether filing charges truly serves justice.

Colorado Victims Have Important Rights

Colorado has one of the strongest Victim Rights Acts in the country.

Victims have important rights throughout the criminal justice process, including the right to receive information, attend many proceedings, and be heard regarding significant decisions affecting their case.

Those rights deserve respect.

Victims should be treated with dignity, compassion, and professionalism.

However, there is an important distinction many people misunderstand.

Victims do not decide whether criminal charges are filed.

That responsibility belongs to the prosecutor.

While victims should absolutely be heard and their concerns carefully considered, prosecutors have an independent obligation to evaluate the evidence and determine whether prosecution is appropriate under the law.

Justice Requires Looking at Both Sides

A prosecutor’s job is not simply to build a case.

It is to search for the truth.

That means looking for weaknesses as well as strengths.

Responsible prosecutors should consider:

• Possible defenses.

• Credibility problems.

• Missing evidence.

• Conflicting witness accounts.

• Constitutional issues.

• Alternative explanations.

• Whether additional investigation is needed before charges are filed.

Justice requires more than proving guilt.

It requires making certain the evidence supports prosecution in the first place.

The Reality of Prosecutorial Discretion

Every prosecutor exercises discretion.

That discretion is one of the most powerful authorities granted within our criminal justice system.

Ideally, charging decisions should be based solely upon the evidence, the law, and the interests of justice.

In reality, prosecutors are human.

They work under enormous caseloads.

They face pressure from emotional victims.

They work closely with law enforcement officers they know and trust.

High-profile cases may generate media attention.

Public perception can become part of the conversation.

Office culture and internal policies may also influence decisions.

None of those factors should determine whether charges are filed.

The evidence should.

Unfortunately, that is not always what happens.

My Philosophy as a Prosecutor

When I served as a Deputy District Attorney, I understood the enormous responsibility that came with deciding whether criminal charges should be filed.

A charging decision can affect a person’s freedom, career, reputation, finances, and family long before guilt is ever proven in a courtroom.

Because of that, I felt a keen responsibility to carefully examine every case from all sides before making that decision.

I looked for weaknesses in the evidence.

I considered potential defenses.

I evaluated witness credibility.

I looked for inconsistencies.

I asked whether additional investigation was necessary before deciding to file charges.

I believed prosecutors owed that level of diligence not only to victims, but also to the accused and to the integrity of our justice system.

In my experience, not every charging decision receives the level of careful analysis it deserves. That is one of the reasons experienced criminal defense attorneys play such an important role. A strong defense ensures prosecutors are held to their burden of proof and that every side of a case is fully examined before someone’s future is determined.

How My Experience Helps My Clients Today

Today, I use that same approach to defend people accused of crimes throughout Colorado.

Having served as both a prosecutor and a criminal defense attorney gives me a unique perspective.

I understand how prosecutors evaluate evidence.

I recognize weaknesses that may not be obvious.

I know what questions prosecutors should be asking before charges are filed.

Most importantly, I understand that every criminal case has more than one side.

That perspective helps me build stronger defenses and advocate more effectively for my clients.

Charged Does Not Mean Guilty

Being charged with a crime does not mean you are guilty.

It means a prosecutor concluded there was sufficient reason to begin the criminal process.

That decision can—and sometimes should—be challenged.

Evidence may be unreliable.

Witnesses may lack credibility.

Important facts may have been overlooked.

Constitutional rights may have been violated.

Every criminal case deserves careful review by an experienced defense attorney.

Talk to a Former Prosecutor Before You Make Any Decisions

If you have been accused of a crime in Colorado, the decisions you make in the first days of your case can have a lasting impact.

As a former Colorado Deputy District Attorney, I know how prosecutors evaluate cases because I once had the responsibility of making those decisions myself.

Today, I use that experience to protect the rights of individuals accused of crimes throughout Colorado.

If you would like to discuss your case, contact Ted McClintock

for a confidential consultation.