Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

i. The Charging Process and Prosecutorial Discretion
The Charging Process
Criminal cases are brought by the state against the defendant. They are different from civil lawsuits, in
which the injured party personally brings the suit against the defendant. In criminal cases, it is the state’s
attorney—also called the prosecutor—who initially decides to charge, or not charge, people with crimes.
For felonies like sexual assault (p. 9, Offense Levels), that decision must also be ratified by a grand jury’s
decision to charge a person with a crime, which is called an “indictment.”
Shortly after arrest, the accused goes before a magistrate for an “initial appearance,” as required by Tex.
Code Crim. Proc. Art. 15.17. A few things happen at the initial appearance: the magistrate determines
whether probable cause existed to make the arrest, informs the accused of the charges, and sets the bail
amount. (p. 47, Bail) The accused also has the option to demand an “examining trial,” which is longer than
an initial appearance and is used to determine whether probable cause exists. Both sides present evidence
during an examining trial (Tex. Code Crim. Proc. Art. 16.01).
The victim might have to testify at either a grand jury proceeding or an examining trial, or both. After the
grand jury issues an indictment, the accused will make a second appearance before a magistrate where he
or she officially hears the charge, pleads “guilty” or “not guilty,” and the court may set bail again.
Prosecutorial Discretion and the Role of the Victim
Prosecutors are among the most powerful of our public officials. They have almost total discretion to
choose who to charge with crimes and to change their minds about which crimes to charge. Further, their
decisions are virtually unreviewable. In any given case, therefore, the victim depends completely on the
prosecutor to guide the case through the justice system. Prosecutors’ broad decisionmaking authority is
called “prosecutorial discretion.”
The biggest consequence of prosecutorial discretion is that, although survivors can consult with
prosecutors and convey their wishes in a case, they generally cannot determine whether the state
charges their attackers with crimes. And if the case goes to trial, the state’s top priority is to convict the
perpetrator. To that end, the role of the victim is as a witness to the crime, whose testimony can help
secure the conviction. Beyond that, however, decisions about how to proceed with a criminal case belong
entirely to the prosecutor and the grand jury. If a prosecutor decides there is not enough evidence to
charge an attacker with a crime, the victim generally has no recourse. Technically, grand juries have the
authority to investigate crimes independently from police and prosecutors, but they rarely do so.
ADVOCACY ACTION: Asserting the Survivor’s Rights
Despite the prosecutor’s broad discretion, do not hesitate to confidently assert survivors’
crime victims’ rights. For example, survivors have the rights to confer with a representative
from the prosecutor’s office, to be informed about court proceedings, and to be treated with
fairness and dignity. Although the victim is not a party to the case, those rights and more
are guaranteed by the Texas Constitution, and the survivor has standing as a crime victim
to enforce them (Tex. Const. Art. 1, § 30(a)-(e)). (p. 25, CVR) Therefore, assert those rights
in writing at the beginning of the prosecution, and specifically request that the prosecutor
consult the survivor before offering a plea bargain and notify the survivor of every public court
proceeding. (p. 55, Plea Bargains)
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