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The Process Of Instituting Criminal Prosecution In Louisiana

Posted by Alex K. Kriksciun | May 25, 2017 | 0 Comments

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The picture has nothing to do with the post.  I just got a chuckle when I saw it.

This will be an "informative" blog post rather than me commenting on local or national affairs or telling stories.  The purpose of this blog post is to try and explain how criminal prosecution is instituted in Louisiana.  There are certain aspects of this process that mystify both my clients and ordinary citizens, which is why I am doing this!  Please note that, for the purposes of this blog post, I am not discussing how traffic tickets are prosecuted - that is a different ball of wax.

The process starts when law enforcement either places somebody under arrest or issues them a summons to appear in court.  Many, if not most, felony arrests take place when law enforcement witnesses a crime take place in their presence or are called to the scene of where a crime is alleged to have taken place.  When I say “witnesses a crime take place in their presence” that does not necessarily mean that law enforcement saw the offense take place first hand.  This is best clarified by reference to traffic stops.   For example, if a police officer pulls over a vehicle for speeding, that police officer may (for various reasons) ask to be allowed to search the driver's vehicle.  If the driver gives consent and the officer finds a key of yayo in the car, that would be categorized as a crime committed “in the officer's presence” even though the officer may have had no idea whatsoever that the car he or she was pulling over was housing approximately $30,000 worth of cocaine.

This brings me to another point.  I have a lead foot and have been pulled over plenty of times.  If an officer asks to search my car, I always say no.  After I graduated from college, I lived for a summer in a rundown oceanfront shack on the Outer Banks of North Carolina with five of my "podnas."  Feeling generous, I decided to buy my parents a gift certificate to the Colington Café, a nice restaurant inland from the beach.  The areas away from the ocean on the Outer Banks are mostly inhabited by locals.  Those areas had, and for all I know, continue to have major drug problems.

In any event, after buying my gift certificate I was driving back to the oceanfront shack in my beat-up old Hyundai.  I get pulled over by a Dare County police officer.  He asks for my license and registration, which I politely provide.  He then knew I was not a local and apparently thought I had been buying drugs.  He asked me what I was doing.  I told him that I was buying a gift certificate to the Colington Café and showed him said certificate.  He then asked if I had a problem with him searching my vehicle.  I told him that I did.  He was incredulous, stating something to the effect of “well if you haven't done anything wrong, what's the big deal?”  He told me that if I did not consent to a search, he would obtain a warrant to search my car.  Says I, “go ahead and get your warrant.  I'll wait.”  Granted, this was before I went to law school, but I figured that he didn't have probable cause to even get a warrant.  The officer then went back to his vehicle, waited about five minutes, then literally told me to “get the fuck out of here.”

Now that I've shared that little vignette, back to the real reason for the blog post.  If law enforcement does not witness a felony take place in their presence, and they believe that they have probable cause to arrest an individual for a felony, they must obtain an arrest warrant.  That warrant must properly prepared and be signed by a judge to be valid.  Once an arrest warrant is issued for a person, they can be arrested at any time.  In many circumstances, the police will actually go searching for somebody that is the subject of a felony arrest warrant.  If the warrant is a federal arrest warrant, I can assure you that the United States Marshals WILL FIND YOU!

Misdemeanors are different.  If law enforcement has probable cause to believe that a person has committed a misdemeanor, they have the discretion to either arrest the person or to issue them a summons.  With some misdemeanors, such as driving while intoxicated and domestic abuse battery, it is almost a given that an officer will choose to arrest rather than issue a misdemeanor summons.  I have seen situations where a police officer has chosen to issue a summons for DWI and domestic abuse battery, but those are very rare indeed.  For any other misdemeanors, it can be a crapshoot.  Simple possession of marijuana used to almost always result in an arrest, especially in more conservative areas such as Jefferson Parish.  The trend now is to issue a summons for simple possession of marijuana, especially when the amount of marijuana is small.  With other misdemeanors, it can depend on such factors of the nature of the offense, the feelings of the victim (if there is one), and the mood of the police officer that day (as dumb as that sounds).

Whether the offense is a misdemeanor of felony, after a person is arrested or issued a summons, law enforcement will turn over all of the information they have to the district attorney's office.  Every district attorney's office has some sort of a process known as “screening,” which essentially consists of reviewing the material received from law enforcement and deciding whether to institute formal criminal charges. 

From a criminal defense lawyer's perspective, this is often a good initial opportunity to try and end the case then and there.  I have been successful on many occasions in contacting the screener and explaining to him or her why formal charges should not be brought.  It is an excellent opportunity to advocate for your client and to push for an excellent result.  Every district attorney's office screens cases differently.  For example, in Jefferson Parish, there is a screening department in the office consisting of several lawyers who in essence do nothing but screen cases.  It may not sound like a glamorous job, but it is an important one and in fact, many of the best lawyers in the office are screeners and have been in the office longer than most other assistant district attorneys. 

In Orleans Parish, my understanding is that serious felonies are currently screened by a small group of lawyers and less serious felonies are screened by the line assistant district attorneys assigned to the section of court to which the case would be assigned.  I have heard that in rural parishes, the district attorney himself does some of the screening.  There is no rhyme or reason to how screening is done, but in all cases, the district attorney's office reviews all available information to determine if it believes that it can prove up the alleged offense.

Once a case has been screened, it can either be “accepted” or “refused.”  If a case is accepted, the district attorney's office files a bill of information or obtains an indictment from a grand jury and the process of criminal prosecution begins.  When a district attorney's office refuses a case, the office has determined that it will decline to prosecute that particular alleged offense.  Some offices accept more cases than others.  The policy of the current Orleans Parish district attorney is to accept an overwhelming majority of its cases, even those cases which (in my opinion) would be unsustainable at trial.  In Jefferson Parish, the district attorney's office refuses a much greater percentage of the cases it receives from law enforcement, even though (I am guessing) they still accept many more cases than they refuse.

If a case is accepted, the person is arraigned and the normal course of criminal prosecution begins.  If you or a loved one have a criminal case in screening with the district attorney's office or any other criminal matter, call the Law Office of Alex Kriksciun today!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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