A target letter typically notifies a person that they are a subject or target of a grand jury investigation. Grand juries investigate alleged violations of federal or state criminal laws. Their role is to determine if the evidence supports bringing criminal charges against someone.
In the federal system, all possible felony charges must go to a grand jury. The “subject” of the investigation becomes a “target” when the grand jury has substantial evidence linking the subject to the crime. State prosecutors or laws may use different designations.
The office in charge of the investigation will send the letter. For federal investigations, this will be an Assistant U.S. Attorney. State prosecution offices might be referred to as a district attorney, state's attorney, county attorney, attorney general, or another name.
No, a target letter is not an indictment. The target letter informs the person of a criminal investigation. An indictment means the grand jury has concluded its investigation and decided enough evidence exists to support criminal charges against the person. The indictment represents the formal criminal charges.
Target letters typically advise a person of a grand jury’s investigation into specific criminal allegations. Prosecutors may also send target letters earlier in an investigation.
The target letter may provide the following information:
Here’s a sample target letter from the U.S. Department of Justice (DOJ). An example of a target letter from a state prosecutor can be found here.
In most instances, prosecutors aren’t required to send target letters. A prosecutor may choose not to because they don’t want to tip off the target of the investigation.
However, a prosecutor may decide to send a target letter for strategic reasons, such as:
The DOJ has internal rules that provide guidance to federal prosecutors regarding target letters. State prosecution offices may have similar rules. A few states’ laws require prosecutors to send target letters unless notification could result in the target fleeing the jurisdiction or endangering others.
(Ind. Code § 35-34-2-9; Nev. Rev. Stat. § 172.241; N.M. Stat. § 31-6-11 (2023).)
That often depends on the timing of the letter.
In some cases, the prosecutor sends a target letter at the beginning of the investigation to seek out cooperation and information from the target and possible resolution. Or the prosecutor might have a law enforcement officer (such as an FBI agent) deliver the letter and ask some questions. These early-on interactions might signal that the investigation is ongoing and the prosecutor may be willing to discuss options short of an indictment (cooperating witness, plea deal).
Other times, the target letter informs the person that the grand jury’s investigation is nearly complete. This letter might invite or subpoena the target to testify before the grand jury and advise the target not to destroy any documents or evidence related to the charges. Here, an indictment is likely forthcoming.
No matter the circumstances, it’s best to consult with a criminal defense attorney before responding to a target letter and to do so as soon as possible.
]]>After an arrest, the police report goes to a prosecutor whose job it is to initiate cases. An arrest report summarizes the events leading up to the arrest and provides numerous details, such as dates, times, locations, and witness names.
The prosecutor will typically:
After an arrest, the police officer specifies the crime or crimes that made the basis for the arrest. Officers may recommend that the prosecution file additional charges, too. But prosecutors get to make the ultimate decision on what the charges will be.
A defendant typically learns what the formal charges will be at the first court appearance. But prosecutors' initial charges are subject to change. For example, a prosecutor might not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.
Typically, if the prosecutor decides to file a felony complaint rather than present the case to a grand jury, the defendant is entitled to a preliminary hearing. At that hearing, the prosecutor must show that the state has enough evidence of the defendant's guilt to warrant a trial.
But normally, if the case proceeds by grand jury indictment, no preliminary hearing need be held.
For much more on this stage of a case, see our section on Preliminary Hearings.
If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called "petit juries") in that they are made up of randomly selected individuals. The grand jurors listen to the evidence and decide whether charges should be brought against an individual—that is, they decide whether to indict someone.
Unlike petit juries, which sit on only one case, grand juries may address many cases in the course of their service. In fact, serving on a grand jury can mean a time commitment of six months or longer.
Here are other ways grand juries are different:
When bringing a case to a grand jury, the prosecutor presents the jurors with a "bill" (the charges) and introduces evidence—usually the minimum necessary, in the prosecutor's opinion—to secure an indictment. The proceedings are typically secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect's lawyer present. But, depending on state law, indicted suspects might later be able to get transcripts or recordings of grand jury proceedings. (The availability of a transcript is a big reason why prosecutors like to keep the evidence to the minimum.)
Prosecutors may advise the suspect that they are the target of the grand jury investigation (but they don't have to). In the federal system, when prosecutors have substantial evidence that the suspect committed a crime, they may send the suspect what's called a "target letter." The target letter generally notifies the suspect of the suspected criminal violations and may invite the suspect to testify before the grand jury. However, most suspects will refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.
If the grand jury decides to indict, it returns what is called a "true bill." Otherwise, it returns a "no bill." But even if the grand jury returns a no bill, the case isn’t necessarily closed. Again depending on the law in the jurisdiction, the prosecutor might be free to return to the same grand jury with more evidence, present the same evidence to a second grand jury, or bypass the grand jury altogether and file a criminal complaint (or other charging document.)
Charging procedures can differ significantly between federal and state courts, from one state to another, and even between locales within the same state. If you’ve been arrested, consult an experienced criminal defense attorney. Such a lawyer should be able to explain the applicable law and guide you through the process.
]]>Many criminal cases start with a 911 call. Police respond to the call and speak with the suspect, the victim, and any witnesses. If police have good reason (probable cause) to believe a crime has been committed and the suspect committed the crime, the police can arrest the suspect. Any victim, suspect, and witness statements, along with the police officer’s observations, will go into a police report that makes its way to the prosecutor’s desk.
Typically, prosecutors base their initial charging decisions on this police report and any documents sent to them by the arresting police officers. But police reports tend to be one-sided. They often recite what the police claim took place, along with victim, suspect, or witness statements that support the police theory. So, before making any charging decisions, prosecutors may also consider whether further investigation is needed, whether police may have acted unlawfully, and what motives the victim or witnesses may have had.
At the end of the day, prosecutors can file formal charges only if they believe the evidence will prove the suspect’s guilt beyond a reasonable doubt—a much higher standard than the probable cause needed for an arrest.
Even if the prosecutor believes they have a strong case, they can take a broader perspective in determining whether or not to pursue the charges. They have what is called "prosecutorial discretion." Prosecutors can look at all the circumstances of a case and the suspect, plus other factors pertaining to justice and public safety. For instance, prosecutors may consider:
Many decisions come down to the prosecutor's sense of what justice requires in the case at hand. Prosecutors are supposed to both enforce the law and "do justice."
Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting, especially when the chances that the person will re-offend are small.
Additional factors may come into play when it comes to a prosecutor’s decision to file charges. Take, for example, the following.
Some prosecution offices adopt policies on certain types of crimes, often in response to community and political pressures, and these policies may dictate the prosecutor's approach to a case.
For example, an office may decide that arrests for driving under the influence of drugs or alcohol will always be taken to trial and not "plea bargained" down to a lesser offense. Or the head prosecutor could decide that their office won't prosecute low-level marijuana cases. As another example, an office might make prosecuting vehicle theft cases their top priority.
Political and career ambitions may also influence prosecutors. Most head prosecutors are elected officials, and many of them view their position as a stepping stone to higher office. Public opinion and important support groups often affect their decisions on charges. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted. Deputy or assistant prosecutors may feel that appearing tough will help their careers, either within the prosecutor's office or later if they want to become judges.
Prosecutors don’t pursue every case put in front of them by police or victim complaints. All the factors listed above might convince a prosecutor to file charges, but they might also sway the prosecutor not to file charges or drop the charges.
Evidence suppressed. A prosecutor might drop the charges if evidence is tossed out of the case, and there’s not enough additional evidence to support a conviction. For example, prosecutors might be forced to drop charges in a drug case if the judge suppresses evidence of the drugs based on an unlawful search by police.
Witness refuses to testify. If a victim or witness recants their statement or refuses to testify, this factor may impact the strength of the prosecution’s case. A prime example of victims recanting occurs in domestic violence cases. If that statement was the key piece of evidence, the prosecutor may have some tough decisions to make on whether other evidence (like whether the doctor reports or witness statements) can prove the case.
Prosecutorial discretion may also come into play. The resources needed to take a first-time offender to court might not be justifiable when compared to a less costly and, possibly, more effective diversion program.
Small fish; big fish. Prosecutors sometimes use a small fish in a large criminal scheme to get to the big fish. For instance, a prosecutor might offer immunity to a drug dealer if they testify against the kingpins of the organization. Immunity means that the prosecutor agrees not to prosecute certain charges in exchange for the defendant’s testimony or other assistance in getting the big fish.
Yes, prosecutors can typically “amend” the charging documents by adding criminal charges. The new charges must be supported by the evidence. Amending the initial charges is common as new evidence is uncovered in a case.
Generally, any changes to the charges or complaint must be made before a plea is entered or trial begins. After that point, the prosecutor may need to get the judge’s permission to add charges or add information to the complaint. A judge might decline the prosecutor’s request to amend the charges if the defendant’s rights would be prejudiced in some way (such as adding charges late in the game that might not allow the defendant adequate time to prepare a defense).
If you’ve been arrested or are being investigated by police, talk to a criminal defense attorney as soon as possible. Generally, it's best not to speak to investigators or police until you’ve spoken with an attorney. You could unwittingly say something that could be used against you.
]]>To start with—and while it might sound counterintuitive—it’s typically best not to offer up any information to police or investigators or to communicate with the accuser until you’ve spoken to a lawyer. Many think that an innocent person has nothing to lose by speaking up and telling the truth, but facts can get twisted around or confused and you can end up causing yourself more harm than good.
Also remember that, in the American legal system, it’s the prosecutor’s job to prove the defendant’s guilt beyond a reasonable doubt. It’s not the defendant’s job to prove their innocence. You don’t want to inadvertently make matters worse, so discuss matters with your lawyer before speaking to others about your case.
Police might investigate a case based on a victim calling 911, a witness reporting a crime, or an accuser asking to press criminal charges against someone. Regardless of how the case comes to the attention of the police, it’s the prosecutor that decides whether to file criminal charges. And when a case comes across the desk of a prosecutor, all that's often available is the police report of the incident in question.
Your average police report—at least a preliminary one—is limited in the information it conveys. Furthermore, police reports frequently get some facts wrong, whether because of misstatements or lies by witnesses or because of errors or bias on the part of officers.
A police report might misrepresent a potentially minor fact, such as the exact words between two participants in an argument that turned into a physical fight. Or it might be flatly wrong, such as when the aggressor in an incident claims the defendant attacked him, whereas the defendant really acted in self-defense. Alleged victims might even lie about or exaggerate injuries.
If the charges are unfounded, the defendant certainly has the option of going to trial, hoping for an acquittal. But criminal trials aren't only risky and expensive, they're also tremendously stressful, as are the proceedings that lead up to them. That's why, before some cases get that far, good defense lawyers will try to nip them in the bud.
Pretrial communication is one of many reasons hiring an experienced criminal defense lawyer as soon as reasonably possible is your best bet. (That said, you shouldn't rush into the decision, nor allow a lawyer to pressure you into hiring him or her. Also, you can typically hire a lawyer for initial representation, then, if appropriate, switch to another one later on.)
If the facts are suitable, some lawyers will try to intervene before the prosecution even files charges. This might involve contacting the arresting or investigating officer before the case gets to the prosecution, or getting in touch with the prosecutor before the filing decision is made. Particularly in less serious cases, the defense attorney might be able to explain the incident such that the case never sees a courtroom. But defendants shouldn't get their hopes up too much about this course of action—it often won't work.
Oftentimes innocent defendants have to wait until the filing of charges before their lawyers can get involved. But that doesn't mean that trial is necessarily in the cards. A client meeting with his or her lawyer should give a complete overview of the facts and anything else that might be relevant (for example, the history of the relationship between the defendant and the alleged victim). At that point, the lawyer can weigh the options.
The lawyer might decide that it's best to immediately investigate the incident and gather evidence (including witness declarations). With this information, the lawyer might try to persuade the prosecution to dismiss the charges. For example, a prosecutor might listen to a defense lawyer who can prove that there's no way the facts could have unfolded the way an alleged victim or witness claims. Of course, depending on the situation, many lawyers will decide it's best not to get into too much detail with the prosecution for fear of giving away material in advance of a potential trial.
Sometimes the best move for the defense is to do nothing. It can take several months for the prosecution to learn that there's insufficient evidence to convict the defendant, whether because a witness recants a story or it becomes evident that the witness isn't credible. (For instance, the witness might have a history of false accusations, or an alleged victim might be actually motivated by a family issue, like child custody.)
Other times a case might go away because the defense wins a pretrial motion, like one to suppress illegally seized evidence. Or perhaps (in a felony case), the defense will win the preliminary hearing, and the prosecution will decide not to re-file. There are several in-court proceedings that might bring about the end of a case short of a plea or trial. But the defense's chances truly depend on the circumstances.
You probably need a lawyer for many reasons, not least of which is the pretrial stage. Only an attorney can carry out the tasks discussed in this article. Further, an experienced lawyer's judgment in these matters is essential—your lawyer should be the one to decide which method(s) to pursue, even if that means waiting patiently for trial.
]]>Both an information and indictment contain the criminal charges being levied against a defendant. Prosecutors in some states have the option of filing felony charges through an indictment (in-DITE-ment) rather than a complaint or information.
When filing a felony complaint, a prosecutor must typically go in front of a judge with a factual basis for the charges. This presentation occurs in a preliminary hearing. After the preliminary hearing in many states, the complaint gives way to an “information."
For an indictment, the prosecutor presents evidence in support of criminal charges to a grand jury. If the grand jury finds sufficient evidence of criminal behavior, it returns an indictment. In federal court, felonies typically proceed through the grand jury process. States vary as to whether an indictment is mandatory or discretionary for felony charges.
Both an indictment and a typical complaint or information signify a determination by a neutral third party (grand jury or judge) that there is a factual basis for criminal charges. The purpose is to prevent defendants from facing unfounded criminal accusations.
Read more on why a prosecutor might choose a grand jury over a preliminary hearing.
]]>The offense is trivial or low priority. Prosecution offices may view certain types of crimes as insignificant or not worth pursuing (perhaps due to limited resources or political pressures). For example, a prosecutor may decline to prosecute all cases involving possession of very small quantities of marijuana. Or the prosecutor may decide not to pursue charges against a group of protesters arrested at a local political rally.
Minor, nonviolent case goes to mediation. In some locations, minor criminal complaints are diverted out of the court system before prosecutors file charges. The alleged offender and complainant are brought together to discuss their problem, sometimes with a facilitator or mediator, to come up with some sort of solution. If you’re interested, ask your defense attorney or public defender whether mediation is available in your jurisdiction.
Civil compromise. Defense lawyers often try to prevent the filing of criminal charges by arranging for a civil compromise. Much like mediated agreements, the defendant agrees to reimburse a victim for damages. In return, the victim asks a prosecutor not to file charges. This option gives wealthier arrestees a ticket out of the criminal justice system that may not be available to those who can’t afford it.
The police officer failed to observe the suspect’s rights. If, through obvious police error, the prosecution lacks enough admissible evidence to make a criminal charge stick, the charge probably won’t be brought in the first place.
The victim asks that no charges be brought. Charging decisions are for prosecutors, not victims. However, if victims ask prosecutors not to bring charges and make it perfectly clear that they will not cooperate, prosecutors often won’t file charges. In past years, this type of situation was common in family disputes. In the heat of an argument, battering, or other abuse, the victim would call the police, leading to the arrest of the abuser. For personal reasons (whether fear of retaliation or hopes of making up), the victim would then refuse to cooperate and charges would not be filed. In recent years, the law enforcement community has begun to take domestic abuse allegations more seriously, and many prosecutors now bring and prosecute domestic abuse charges even if the victim doesn’t want to pursue the case.
The prosecutor views the suspect as a good person. Occasionally, a prosecutor will decide that a basically good person made a stupid mistake that shouldn’t result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice or because it would be a waste of resources (time and money) to charge such a person with a crime, even though the initial arrest was valid.
The prosecutor wants one defendant. Commonly, a prosecutor will drop charges against one suspect in exchange for that suspect’s testimony against another suspect.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>An arrest, by itself, doesn’t begin formal criminal proceedings. Rather, the filing of a document in court is required. In most instances in state court, the document is a “complaint.”
Complaints can be either civil or criminal. Civil complaints initiate lawsuits, typically between private parties or a private party and the government. Criminal complaints, on the other hand, are almost always filed by the government. (Some states allow citizens to file criminal complaints or applications for them.)
A state prosecution usually begins after a police officer arrests someone and presents the case to the prosecution. The latter then files a complaint, which charges the defendant with the relevant crime(s). So begins the legal process.
A complaint typically lists:
Typically, when officers make an arrest, they draft reports, then present those reports to the prosecution. The prosecution then decides whether to file charges against the arrestee. There are, however, instances in which an arrest may follow the filing of a charging document. For example, a grand jury might indict a defendant, after which point the authorities take him or her into custody.
]]>Lawyers. Lawyers who threaten to take opponents to criminal court in order to gain an advantage can be subject to discipline for unethical behavior. This scenario sometimes arises in particularly contentious cases: Lawyer A threatens to report Lawyer B or Lawyer B’s client to the authorities for some kind of alleged misconduct unless they cave to A’s demands. Of course, if the threatened party has actually committed a crime, that party probably won’t want to report the threat-maker (thereby potentially drawing the interest of law enforcement investigators). Whether a lawyer who makes this kind of threat can be disciplined depends on the law in the jurisdiction. In California, for one, the relevant rule says that a lawyer “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (Cal. R. Prof. Conduct 3.10 (2021).)
Members of the public. It can even be a crime to threaten to initiate criminal proceedings against someone. In Washington, for example, trying to obtain goods or services from another by the threat of criminal prosecution constitutes second-degree extortion. (Wash. Rev. Code §§ 9A.56.110, 9A.56.130, 9A.04.110 (2021).) (It’s a defense that the defendant reasonably believed the threatened charges to be true and was acting solely to cause the other party to remedy the situation.)
Debt collectors. It can also be illegal for a debt collector to threaten criminal action against someone who is late on a bill. (See this article on debt-collector threats.)
Anyone who’s been threatened with criminal charges should normally consult an experienced attorney as soon as possible.
]]>Although it’s possible, prevailing in a “malicious prosecution” or similar lawsuit against a district attorney or equivalent government lawyer for the act of filing charges is usually a tall task. A criminal defendant turned civil plaintiff must typically prove outrageous conduct by the lawyer(s) in question. For what’s needed to win a malicious prosecution suit, see Suing For Damages: Malicious Prosecution.
]]>The prosecution invokes nolle prosequi or dismissal when it has decided to discontinue a prosecution or part of it. Lawyers and judges refer to the charges “nol prossed” or dismissed. The prosecution may nol pross all charges against the defendant or only some.
In some states, the prosecution must move to dismiss charges (often “in the interests of justice”), and the case doesn’t end until the court grants the motion. In others, the prosecution can unilaterally dismiss charges.
A prosecutor might nol pross or dismiss charges for a variety of reasons, including:
Example: Wee is arrested for assault with a firearm. Officers take statements from two witnesses who say they saw him fire a gun at someone walking down the street. After reading the police reports, the local prosecutor decides to press charges. Weeks later, officers find the weapon underneath a garbage dumpster near the place of the shooting. Forensic testing reveals the fingerprints of someone other than Wee on the weapon. The prosecution nol prosses the charges.
The normal effect of nolle prosequi is to leave matters as if charges had never been filed. It’s not an acquittal, which (through the principle of double jeopardy) prevents further proceedings against the defendant for the conduct in question. Rather, at least when it occurs before trial, nolle prosequi typically leaves the decision of whether to re-prosecute in the hands of the government. If the prosecution decides to bring charges again—for example, after it’s gathered more evidence—it must file a new charging document. (People v. Daniels, 187 Ill. 2d 301 (1999), Kenyon v. Com., 37 Va. App. 668 (2002).)
However, dismissals are sometimes "with prejudice." A dismissal with prejudice means the prosecution can’t ever refile charges; dismissal without prejudice means the prosecutor can refile the charges.
]]>A demurrer involves a consideration of the document itself—not any of the evidence. Some demurrers go to the heart of the charging document by alleging that it fails to state an offense, while others challenge its form—for example, by arguing that it’s too vague or uncertain.
Demurrers usually occur at or before the time for entering a plea. If the court grants a demurrer, the prosecution can typically re-file charges. Similarly, some errors are so minor that the prosecution or judge can simply edit them and otherwise leave the charging document intact. But sometimes the demurrer reveals an underlying problem with the prosecution’s case that can’t be fixed.
Example: The prosecution charges Walter with a statute that penalizes violation of the terms of a family violence order. But the complaint doesn’t indicate the terms that he allegedly violated or the manner in which he violated them. It doesn’t specify, for example, that he came to the family home when prohibited from being there, or that he came within a prohibited distance of his estranged wife. The court grants Walt’s demurrer. (Newsome v. State, 296 Ga. App. 490 (2009).)
Example: Gus files a demurrer to a complaint that accuses him of threatening Walter in violation of a statute that prohibits “criminal threats.” Gus claims that the statute is unconstitutional because it infringes free speech, and that the complaint is therefore void. The judge rejects this argument on the grounds that previous courts have rejected similar claims; they’ve held that the Constitution doesn’t protect all kinds of “speech.”
Example: In a theft prosecution, Saul argues that the complaint is faulty because it doesn’t provide the name of the owner of the allegedly stolen property. But Saul didn’t raise this technical argument until after pleading to the indictment, so the court deems it “waived.” (Lanier v. State, 269 Ga. App. 284 (2004).)
]]>How long after arrest do I have to wait to find out what the charges are?
For suspects who are in custody, some kind of court appearance (usually an "arraignment" or "initial appearance") must typically occur within two or three days. At that court appearance, the government presents the charges against the defendant. The charges are normally subject to change, though. For example, a prosecutor might not make a final decision on charges until after a preliminary hearing, which can take place more than a month after arrest.
For more detail on the first court appearance and what happens at it, read about the arraignment process.