Pathways to Offense Charging: Examining Defense Decision-Making During Case Processing

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/00938548231170797
• Author: Tri Keah S. Henry,Howard Henderson
• Date: 01 September 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 9, September 2023, 1299 –1320.

DOI: https://doi.org/10.1177/00938548231170797

Article reuse guidelines: sagepub.com/journals-permissions

© 2023 International Association for Correctional and Forensic Psychology

1299

PATHWAYS TO OFFENSE CHARGING

Examining Defense Decision-Making During Case

Processing

TRI KEAH S. HENRY

Indiana University Bloomington

HOWARD HENDERSON

Texas Southern University

Prosecutors are afforded significant discretionary power in the current justice system. While much attention has been given

to the factors that influence charging decisions, little is known about decision-making in the charging process itself.

Moreover, research has yet to examine the mechanisms used to initiate charging: grand jury indictments or the information.

As these charging processes are characteristically different and may have significant implications for case processing and

justice outcomes, it is important to explore what factors influence decision-making at this early stage. The current study

addresses these shortcomings using case-processing data from a large urban jurisdiction. Results indicate significant differ-

ences between defendants charged via grand jury and information processes. In addition, charging pathways have important

consequences for case outcomes.

Keywords: prosecutorial discretion; case processing; case outcomes; charging practices

INTRODUCTION

Prosecuting attorneys are widely considered one of the most powerful decision-makers

in the criminal justice system, so much so that they are often considered the gatekeepers of

the criminal-legal system. Prosecutors are central to early case-processing decisions (e.g.,

charging) and to a certain extent, case outcomes as a result of the heavy reliance on plea-

bargaining. Given the centrality of their position, scholars have begun to examine their

decision-making behaviors, particularly in relation to charging decisions (Alderden &

Ullman, 2012; Brady & Reyns, 2020; Kutateladze et al., 2012; Lowrey-Kinberg et al., 2022;

O’Neal & Spohn, 2017; Pinchevsky, 2017; Romain & Freiburg, 2013; Shermer & Johnson,

2010). Missing from the current discussion of charging decisions is an examination of the

charging process itself and the role other court actors play in directing this process.

AUTHORS’ NOTE: This project was supported by the Center for Justice Research at Texas Southern

University. Correspondence concerning this article should be addressed to Tri Keah S. Henry, Assistant

Professor, Indiana University Bloomington, Sycamore Hall 302, 1033 E. Third Street, Bloomington, IN 47405-

7005, USA; e-mail: trihenry@iu.edu.

1170797CJBXXX10.1177/00938548231170797Criminal Justice and BehaviorHenry, Henderson / Pathways to Offense Charging

research-article2023

1300 CRIMINAL JUSTICE AND BEHAVIOR

In many jurisdictions, prosecutors are responsible for initiating the charging process and

do so in one of two ways: grand jury indictment or information filing. While both grand jury

indictments and information filings are legal documents that charge a person with a crime,

they are notably different in origin, use, and process characteristics (Henning, 2015; Kuckes,

2004; Lombardo, 2000; Richardson, 1981; R. Simmons, 2016). The right to indictment by

grand jury is outlined in the Fifth Amendment of the U.S. Constitution, which guarantees

all citizens the right to a grand jury hearing prior to formal charging. Importantly, this right

has not been extended to the states via the Fourteenth Amendment, to allow flexibility in the

charging process (Richardson, 1981). As such, grand jury hearings are not a prerequisite for

charging at the state level. In contrast, many jurisdictions employ an information filing

process to levy charges against individuals accused of crimes. Informations are generally

filed directly with the court from a prosecutor. Notably, many jurisdictions use both charg-

ing mechanisms to initiate formal legal proceedings.

Unlike many case-processing decisions, the charging process is not solely dictated by

prosecutors. While prosecutors are primarily responsible for establishing probable cause

and charges against the accused, defendants may guide this process by deciding the setting

in which this process occurs. Specifically, the defense may choose to waive their rights to

grand jury proceedings, in favor of a preliminary hearing.1 Given the various procedural

privileges granted to defendants at preliminary hearings, doing so may have important con-

sequences for case outcomes. Notably, little research has examined the factors that influ-

ence a defendant’s decisions to rely on either process.

Moreover, prior research has neglected to account for differences in charging processes as

a factor that may affect case outcomes. A large body of research suggests that case-processing

factors significantly influence sentence outcomes for persons convicted of an offense

(Brennan, 2006; Farrell et al., 2009; Feldmeyer & Ulmer, 2011; Franklin & Henry, 2020;

Kutateladze et al., 2014; Tartaro & Sedelmaier, 2009; Wang et al., 2013; Wooldredge, 2012).

For example, individuals who are detained prior to trial face more punitive sanctions as

opposed to those who are released. In addition, those sentenced at trial (i.e., they do not accept

a plea) face a trial penalty if found guilty. Grand jury indictments and informations present the

accused with significantly different opportunities to oppose charges against them. As such,

these early process decisions may have unique effects on subsequent case outcomes.

The current study examines the consequences of this unexplored area of decision-mak-

ing. To address these shortcomings, we first examine defendant decision-making in the

charging process. Specifically, we explore the circumstances in which the accused choose

to forego grand jury proceedings, opting instead for a preliminary hearing. Next, we exam-

ine the extent to which charging processes influence case outcomes for defendants.

Specifically, we explore the relationship between charging mechanism (i.e., grand jury or

information), case dismissals, deferred adjudication, and conviction. In doing so, we rely on

data from a large urban prosecutor’s office, which utilizes grand jury and information filing

processes to initiate case processing.

CHARGING DEFENDANTS: GRAND JURY INDICTMENTS AND

INFORMATION FILING PROCESSES

The grand jury process has a long-standing history in the American justice system.

Grand juries are tasked with determining whether sufficient evidence exists to charge the