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Who Decides What Crime You Face?

Posted by Steven H. Fagan | Dec 05, 2018 | 0 Comments

Prosecutorial Discretion: Who Decides Your Criminal Charges

Let's imagine you're charged with Aggravated Unlawful Use of a Weapon (AUUW), which is a felony criminal offense in Illinois. You were caught with a gun and didn't have a FOID card. Let's add in that there were (mostly) empty beer cans in the back seat of the car you were driving, which is where you had that gun. And the gun was under the front driver's seat, where you were sitting. And the Illinois vehicle registration had expired, which was why you were stopped. And when the officer said you were being arrested for DUI, even before he found that gun, you got a little nervous, maybe just a little physical, and also ended up with a charge of Resisting Arrest. 

Follow all that? 

The Police Officer Has the Power... Until He Doesn't

Now the officer can just throw all those charges into the mix, and maybe even throw in a few more for good measure. At this stage of things, he gets to decide how to charge you, within reason. But about that felony gun charge, he needs to bring in someone further up the food chain. He calls the State's Attorney, or in a larger county like Cook, Lake or DuPage, an assistant State's Attorney specifically on call to make those types of decisions. That Assistant State's Attorney can approve the filing of felony charges and decide the specific way to charge. 

The Prosecutor's Prosecutorial Discretion: How Far Does it Go?

Once the case gets further along in the process, the prosecutor can later decide to change things. It might be to amend any of the criminal offenses, up to a felony or down to a misdemeanor. Up or down to a felony charge with more or less severe penalties under Illinois law. The DUI might be dropped, amended, upgraded, or left alone. The defense attorney might try to engage in plea negotiations to convince a prosecutor to make those moves, or the evidence might later look stronger or weaker for a particular case as information is introduced and legal positions are analyzed. 

But what if the negotiations break down? Or what if the prosecutor just won't or, for whatever reasons, can't, make any changes to your benefit? The Judge has a great deal of power in a courtroom, but the Judge can't make a prosecutor file charges, amend charges, or drop charges (absent a legal basis to do that last). What can a Judge do in the face of a prosecutor's power to decide what charges to bring? A Judge can let a prosecutor know their mind in an agreed upon conference to discuss the issues in the case. A Judge can issue a finding of not guilty at trial, or find a defendant guilty of a lesser included offense. But those are the practical limitations. That's how much power the prosecution has over what charges you face, and why the ability to negotiate with your prosecutor is so important.

If you face criminal or DUI charges in Illinois, whether misdemeanor or felony, call us now to see how Fagan, Fagan & Davis can help. 

About the Author

Steven H. Fagan

Steve Fagan graduated from the University of Illinois in Urbana/Champaign with a degree in political science. He earned his law degree from Chicago-Kent College of Law. Before being admitted to the bar, Steve prosecuted for the village of Arlington Heights, Illinois under a special certificate fr...

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