CHAPTER 4: OVERVIEW OF A CRIMINAL CASE - Table of Contents
4.1 - Filing of Charges • 4.2 - Arrest and Custody • 4.3 - Advisement Hearings • 4.4 - Preliminary Proceedings • 4.5 - Plea Negotiations • 4.6 - Arraignment • 4.7 - Pretrial Motions • 4.8 - Overview of a Criminal Trial
4.1 FILING OF CHARGES
In Colorado, prosecutions for state criminal offenses are brought by indictment, information, complaint or summons and complaint. The prosecutor holds broad discretion in deciding how to initiate a prosecution. An indictment is returned by a grand jury, an information is filed by a prosecutor, a complaint and a summons and complaint may be filed by either a prosecutor or a law enforcement officer.
Prosecution for a felony may be started one of three ways: 1) the return of a grand jury indictment; 2) the filing of an information in district court by the district attorney or 3) the filing of a felony complaint in county court by the district attorney.
The vast majority of felony prosecutions are started by the district attorney filing a felony complaint in county court, after a review of reports submitted by law enforcement officials. A district attorney might file a felony information in district court when the case is particularly important, such as a first-degree murder case. This way a district court judge will conduct the preliminary hearing. Grand jury indictments are discussed below.
MISDEMEANOR AND PETTY OFFENSES
Prosecution of a misdemeanor or petty offense is initiated in county court by complaint or by summons and complaint under simplified procedures set out in the Colorado Criminal Rules of Procedure. In Boulder, the overwhelming majority of misdemeanor complaints are filed by the arresting officer.
When a peace officer makes a misdemeanor or petty offense arrest, either with or without a warrant, the arrested person should be taken without unnecessary delay before the nearest county court. A complaint, or summons and complaint, should immediately be filed in the proper court, and a copy given to the defendant before or at arraignment. Most misdemeanor defendants are advised of their rights and arraigned on the charges at this first appearance.
A grand jury normally consists of twelve members and four alternates selected from the community. A grand jury can have as many as twenty-three members. In smaller counties, the district attorney can ask the court to convene a grand jury. In larger counties, the court must convene a grand jury each year. The attorney general can ask an appropriate chief judge to convene a state grand jury that has jurisdiction beyond any single county or judicial district. The grand jury term is for twelve months but the court can discharge it early or enlarge the term to up to eighteen months if required for the efficient administration of justice.
The grand jury has the power to investigate crimes. It then has the discretion to determine whether there is probable cause that a particular person committed a crime and whether an indictment should be returned. Unlike law enforcement agencies, the grand jury has subpoena powers, enabling it to compel the appearance of witnesses or the production of documents, and it can use that power to investigate crimes by obtaining evidence otherwise not available to the law enforcement agency or the prosecution. The grand jury can take sworn testimony and its proceedings are secret. In Colorado, unlike many states, attorneys may counsel and assist witnesses in the grand jury room, although they are not allowed to object or argue. A vote of at least nine of the twelve members, or twelve of twenty-three members, is required to return an indictment.
The indictment, which is sometimes referred to as a "true bill", is a written statement signed by the foreperson of the grand jury and by the prosecutor and presented in court, charging a person with a crime. When charges are initiated by indictment, the defendant is not entiltled to a preliminary hearing, but the defendant can request that the court review the grand jury record to determine whether the grand jury's finding of probable cause is supported by the record. When the grand jury does not return an indictment, it may issue a report, but only under specified circumstances and after following specified procedures. The secrecy of the grand jury continues until an indictment or a report is made public. If no indictment or report is issued, the proceedings of the grand jury remain secret.
Only a small number of prosecutions in Colorado state courts are initiated through the use of a grand jury. A grand jury might be considered useful when the prosecutor believes that further investigation should be done and that the subpoena power, the ability to take sworn testimony, and secrecy rules of grand jury proceedings will assist in that investigation. Additionally, a prosecutor might turn to the grand jury in a politically sensitive case in order to take the evidence before a group of citizens to include their experience and objectivity, as well as the sentiment of the community they represent, as part of the charging decision.
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