Understanding How Colorado’s Prosecutors Make The Decision To File Charges In Felony Criminal Cases

By H. Michael Steinberg, A Colorado criminal defense lawyer- practicing Colorado Criminal Law from both sides for over 40 years.

Introduction:

The moment a Colorado detective case file uploads a new felony case filing to a prosecutor’s computer in Colorado, the fate of a person’s freedom, reputation, and future hangs in the balance.

One signature can transform an arrest into a formal felony charge that will follow someone for years—or that DA may decide that the evidence simply isn’t strong enough to move forward.

Behind that critical decision lies a quiet, high-stakes calculus few outsiders ever see: the careful weighing of evidence, credibility, public safety, and the ethical duties that govern that decision, which should involve all of these things and the elusive goal of real fairness and justice rather than simply securing a conviction.

In the pages that follow, we pull back the curtain on how Colorado’s district attorneys and their teams actually decide whether to file felony charges—and why that choice is far more nuanced, deliberate, and consequential than most people realize.

A Brief Overview Of What Actually Takes Place Before Felony Charges Are Filed With The Colorado Courts

When someone is arrested or cited for a crime in Colorado, the next and often most critical step is whether the prosecutor decides to file formal charges.

Colorado Prosecutors do not simply charge every case that comes across their desk. Instead, they evaluate a combination of legal, factual, and practical factors before deciding whether to file charges in a criminal case.

First – The Review Process – What Am I Looking At?

First, the prosecutor reviews the evidence collected by law enforcement. This includes police reports, witness statements, physical evidence, photographs, video, and any expert reports if they exist at the time.

Second – Is There Sufficient Evidence To Prove The Crimes Submitted By Law Enforcement Beyond A Reasonable Doubt To A Colorado Jury?

Second, the prosecutor considers whether the evidence is likely to be strong enough to convince a jury at trial.

This involves assessing:

the witness(es) credibility,
the reliability of all forensic or technical evidence,
and any weaknesses in the investigation.

If critical evidence is missing, if key witnesses are unreliable or unwilling to cooperate, or if there are legal problems with how evidence was obtained, a prosecutor may decline to file or may choose less serious charges since the burden of proof at trial is the highest in the world – beyond a reasonable doubt.

Third – Does the Evidence Cover the Specific Legal Elements, Including the Mental State, for Every Crime Charged?

Third, Colorado Prosecutors take into account the specific legal elements of the potential charges. Colorado’s criminal statutes require proof of particular mental states (such as intent, knowledge, or recklessness) and actions.

If the facts do not clearly fit the statute, or if there is substantial doubt about proving the required mental state, the prosecutor may decide not to file the charges sought by law enforcement or may file lesser offenses that better match the available evidence, sometimes referred to as “down filing” the charges.

“Down filing” is informal Colorado practice terminology, not a distinct statutory procedure. It generally means the prosecution elects to proceed on a less serious charge than the charge initially contemplated, arrest-supported, or originally filed. That can occur at initial charging, by dismissing higher counts and filing/relying on lower ones, by amending an information, or as part of a negotiated plea to a lesser included—or sometimes lesser non-included—offense.

The controlling practical point is that charging decisions ordinarily belong to the prosecutor. Colorado recognizes that the power to “initiate, alter, or dismiss charges rests solely within the prosecuting attorney’s discretion,” subject to limited constitutional, evidentiary-sufficiency, integrity-of-process, and statutory

Thus, “down filing” does not mean that the Court can compel the DA to reduce a charge. It describes a prosecutorial charging or plea-resolution choice, subject to the court’s ordinary authority over amendment, plea acceptance, and constitutional protections.

Fourth – Other Factors Taken Into The Mix Of Relevant Factors

Fourth, Colorado prosecutors look at the broader context:

the defendant’s prior record. if any,
any history of similar conduct,
the impact on the victims, and
other public safety concerns.

For minor or first-time offenses, a prosecutor might opt for diversion, deferred prosecution, or lesser charges, especially when rehabilitation seems likely. This is where a Colorado criminal defense lawyer could make a difference by providing the District Attorney with important mitigation information that could help the DA make this decision.

In more serious cases, such as violent crimes or repeat offenses, they are more inclined to file formal charges.

Fifth – Colorado Prosecutors Are Bound By Specific Ethical Rules That Govern Their Decisions

Fifth, and finally, any practical and ethical considerations that could influence the decision to file charges in a criminal case. Prosecutors have a duty not to bring cases they do not believe can be fairly proved in court.

They must also consider office policies, sentencing laws, possible plea bargaining options, and resource limitations, such as court calendars and the availability of experts.

Understanding How Colorado’s Prosecutors Make The Decision To File Charges In Felony Criminal Cases

Summary And Conclusion

All of these factors come together in an initial charging decision that can have lifelong consequences for the accused and significant impact on victims and the community.

Understanding how Colorado Prosecutors approach this decision helps explain why some cases move forward quickly, some result in reduced or different charges, and others are never formally filed at all.

Colorado Criminal Law – Understanding How Colorado’s Prosecutors Make The Decision To File Charges In Felony Criminal Cases

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, including Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law, and he hopes this article helps you in some small way.