Pre-Filing Investigation

“Won’t Hiring a Lawyer Make Me Look Guilty?”

No. Detectives and prosecutors deal with represented people constantly — it’s routine, and it isn’t read as an admission of anything.

What actually affects a filing decision is the evidence. And what damages people most often is the opposite instinct: trying to appear cooperative by explaining, which is how unrepresented people talk themselves into charges that wouldn’t otherwise have been filed.

If a detective has contacted you, call before you call them back.

How to Know You’re Under Investigation

Sometimes it’s obvious. Often it isn’t. Common signals:

• A detective calls or leaves a card, asking you to come in and “clear something up” or “get your side of the story”
• Police came to your home or workplace looking for you
• A search warrant was executed at your home, business, or vehicle
• Your phone, computer, or records were seized
• Someone you know was contacted and asked about you — a coworker, a family member, an ex
• You received a target letter or a grand jury subpoena, typically in federal matters
• Your bank, employer, or professional licensing body was contacted
• You were arrested and released without charges — this frequently means the case was sent to the DA for a filing decision rather than dropped
• An incident occurred and you’ve heard a report was made

Being released without charges is not the same as the case going away. It very often means a report has been forwarded to the District Attorney’s Office and is sitting in a queue awaiting review. People assume silence means resolution. Frequently it means the decision hasn’t been made yet.

The Filing Decision

Police don’t file charges. They investigate and submit a report to the District Attorney’s Office, where a prosecutor reviews it and decides whether to file, what to file, and how many counts.

That prosecutor is working from one version of events — the one in the police report. They generally have not heard from you, have not seen evidence that contradicts the report, and have not been told anything about who you are.

They’re also evaluating whether the case is provable. Prosecutors don’t file everything that crosses their desk; they file what they believe they can prove beyond a reasonable doubt, and they decline cases that are weak, incomplete, or better handled another way.

That decision is the target. Once charges are filed, positions harden — a filed case has a case number, a court date, and institutional momentum. Before filing, it’s still a question.

What an Attorney Actually Does Before Charges Are Filed

This isn’t waiting. It’s a defined body of work.

Contacts the investigating agency and the prosecutor. Establishing representation means detectives go through counsel rather than reaching you directly — which ends the attempts to get a statement.

Sends preservation letters. Surveillance footage is overwritten in days or weeks. Phone records, badge cam footage, and business security video all have retention limits. A preservation demand sent now protects evidence that will be gone by the time charges are filed.

Conducts an independent investigation. Locating and interviewing witnesses before they scatter, documenting the scene as it currently exists, and collecting records the police didn’t gather because they weren’t looking for them.

Prepares and submits a presentation to the District Attorney. Sometimes called a DA letter or pre-filing packet — a written submission with supporting evidence, presenting the facts the report omits and making the case that charges shouldn’t be filed, or should be filed differently.

Retains experts where the case needs one. Fire analysis, accident reconstruction, forensic accounting, digital forensics, medical review. Expert analysis obtained before filing can change the prosecutor’s assessment of whether a case is provable.

Presents mitigation. Who you are, what your history is, what the context was. Prosecutors have discretion, and discretion responds to information.

Negotiates the filing itself. Where charges are going to be filed, there’s still the question of what — felony or misdemeanor, how many counts, which enhancements. Those are negotiable before filing in a way they aren’t after.

Arranges surrender if it becomes necessary. See below.

Arranged Surrender

If an arrest warrant issues, there are two ways it happens.

Without an attorney: officers come to your home, your workplace, or stop your car. It happens on their schedule, in front of whoever is present, and you go into custody with no preparation — no bail arranged, no one told, no work covered.

With an attorney: surrender is arranged. You appear at a scheduled time, with counsel present, with bail arranged in advance, having told your employer what you needed to tell them and having handled your family obligations. The booking process is the same. Everything around it is different.

Courts also treat voluntary surrender differently from apprehension, and that difference shows up in bail arguments.

→ Bail · Arrest & Bench Warrants

How Long the Window Stays Open

There’s no fixed period. A filing decision can come within days of an arrest, or months after an investigation that you never knew was happening.

Statutes of limitations set outer limits — generally one year for most misdemeanors and three years for many felonies, with longer periods for serious offenses and no limit at all for some. But those are the outside edges, not the working timeline.

Practically, the window closes when the prosecutor makes the decision — and you typically won’t be told when that’s about to happen.

The implication is uncomfortable but simple: if you know you’re under investigation, the time available is unknown and shrinking.

What Not to Do While Under Investigation

Don’t talk to investigators. Not to explain, not to deny, not to “clear it up.” Officers conducting an interview are gathering evidence, and the interview is recorded. Innocent explanations become inconsistencies; inconsistencies become evidence of consciousness of guilt.

Don’t consent to searches of your home, vehicle, phone, or devices. Consent waives protections you otherwise have.

Don’t contact witnesses or the complaining party. Even a well-intentioned attempt to apologize, explain, or resolve things privately can be characterized as witness tampering or intimidation — which is a new and separate offense.

Don’t delete anything. Not texts, not photos, not social media, not emails, not files. Deletion is recoverable, it is noticed, and destroying evidence creates a separate charge that is frequently easier to prove than the original allegation.

Don’t discuss it. Not with coworkers, not with friends, not in writing anywhere. Anyone you tell can be interviewed.

Don’t assume silence means it’s over. The most common reason people miss this window is believing that no news is good news.

Why a Former Prosecutor Matters Before Charges Are Filed

This work is a direct communication with a prosecutor about a decision that prosecutor is about to make. Its effectiveness depends entirely on understanding how that decision gets made.

Polina Logrue made those decisions at the Orange County District Attorney’s Office. She knows what a filing deputy is actually evaluating, which weaknesses in a report prompt a second look and which get absorbed, what kind of submission gets read carefully versus skimmed, and how mitigation is weighed against the facts.

She also knows the difference between an argument that sounds persuasive to a defendant and one that is persuasive to a prosecutor. They are rarely the same argument.

Meet Polina →

Contacted by Police? Do This Now

1. Don’t call the detective back until you’ve spoken with an attorney. You are not required to, and the call is not going to help you.
2. Write down exactly what happened — the contact, what was said, what was asked, who was there, dates and times.
3. Preserve everything. Messages, photos, receipts, location data, anything relevant. Don’t delete and don’t edit.
4. Identify witnesses now, while you can still find them.
5. Note any surveillance that might exist — businesses, doorbell cameras, traffic cameras — and tell your attorney immediately so it can be preserved.
6. Say nothing to anyone else about the substance of the matter.
7. Call today. The window is open right now and you won’t be told when it closes.

Call (949) 758-4469 · Free Consultation