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    The Charging Decision and Control Of The Case  – Who Really Controls The Course Of Colorado Criminal Cases?


    In criminal cases, the state prosecutes a person for violating a criminal law. The decision to initiate a criminal action and to accuse a person of a particular crime the charging decision is made by the district attorney of the county in which the crime was committed. (In a few types of cases, the attorney general may initiate the action.)

    Crimes are generally divided between felonies and misdemeanors. A person convicted of a felony may be sentenced to prison (though prison is not the only sentencing option . A misdemeanor conviction usually carries a jail sentence of no more than two years in the county jail.

    Felony and misdemeanor crimes are further divided into different classes of crimes depending on the severity of the crime and the maximum possible punishment. For offenses committed after Feb. 1, 1993, there are six classes of felonies (1 through 6) and three classes of misdemeanors (1 through 3).

    What if the victim and the DA disagree about the charge?

    In Colorado the decision to proceed with a criminal complaint does not depend on a victim pressing charges or swearing out a complaint. In certain kinds of cases, for example, domestic violence or intra-family sexual assault cases, it might appear that the victim may be afraid to or unwilling to cooperate with the prosecutor.  Such a victim may go so far as to recant, or deny, the allegations on which the charge is based. Such a turn of events does not require a prosecutor to dismiss the action, but it raises the question whether the prosecutor can prove the case without the victim’s cooperation.

    In some cases charges have been proven successfully without a cooperative victim, based on the testimony of other eyewitnesses, or of statements of the victim made in the wake of the alleged crime (which may be used at trial under evidentiary rules known as the excited utterance and present sense impression exceptions to the hearsay rule).

    Can the DA change the charge?

    Yes. The initial charging decision may change as the case progresses. Certain kinds of conduct might constitute more than one crime. For example, depending on the circumstances, a shooting might be charged as attempted homicide, first or second degree recklessly endangering safety, first or second degree reckless injury, or negligent handling of a dangerous weapon. As a case proceeds, and as more evidence comes to light, it may be necessary to change the charge amend the information in the case of a felony or amend the complaint in the case of a misdemeanor).

    Further, negotiating strategy may influence the charging decision. Some prosecutors routinely charge the most serious offense they think they can prove, and may be prepared to lower the charge if the defendant pleads guilty. Other prosecutors routinely charge a less serious offense, but warn the defendant at the outset of the case that the information or complaint will be amended to charge a more serious charge if the case proceeds to trial.

    Initial Appearance and Setting Bail

    Defendants must be brought before a judge in open court within a reasonable time. This initial appearance is often the morning after an arrest, but it is seldom longer than 48 hours after an arrest. At this first appearance, the district attorney usually gives the judge and the accused a copy of the criminal complaint. The complaint, a legal document charging the accused with a crime and providing some details of the alleged offense, is a public record and may provide the first reliable description of the prosecutor’s view of the case. The complaint may summarize any statements made by the defendant to the police.

    A judge or Magistrate presides over this hearing and usually decides whether the accused should be held in jail or released pending further proceedings. The principal function of bail is to ensure that the defendant attends further proceedings in the case. In less serious cases, many defendants are released with only a signature and a promise to return to court without depositing any cash or property with the court. These personal recognizance bonds can be misleading because they state a monetary amount. This is not an amount that the defendant is required to post; instead it is the amount of money the defendant may be liable to pay if he or she violates the terms of the bond.

    (The words “bail” and “bond” often are used interchangeably in court.)

    In more serious cases, a court may require the defendant to post cash or property to ensure his or her reappearance. Requiring the defendant to post bail cannot be used to punish the defendant. Nor may monetary bail be used to protect the community from the accused; the court may use non monetary “conditions of bail” to that end, such as ordering that the defendant not have any contact with certain places or people, not have weapons, not drive, remain sober, and so on.

    Sometimes defendants are required as a condition of bail to remain at home while the case is pending, where they are monitored electronically, by telephone contact, or by in-person visits.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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