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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27420
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My Fiancees house was ransacked and burglarized; neighbors saw a neighborhood perso

Customer Question

My Fiancee's house was ransacked and burglarized; neighbors saw a neighborhood person walking behind the house in an area that was not normally the route back to his house. The next day, a "Cash for Gold" place gave this same person cash for her jewlery. He used his correct ID and a picture was taken of him. In addition, he had a driver who, when prompted, told the police he drove him from place to place to pawn the loot.
The police say they can only charge him with receiving stolen property (he is 18) even though at least 6 neighbors saw him carry two trash bags on the day of the burglary.
Is this proper?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

It doesn't matter what the police says they can charge him for and what they write to that effect on their paperwork. They are not lawyers. When they are done, they will turn the papers over to the prosecutor who, of course is a lawyer.. He will review all the evidence he has and determine what crimes he believes the facts as alleged make out. Sometimes that will match the police perception, but many times the charges that are filed with the court differ from what the police think.

If you've given the information that you have to the police, then that would be conveyed to the prosecutor. Given the nature of the crime, believe me, if there is any way the prosecutor feels he can make out the elements a burglary with the facts that they have they will do so. But just seeing that person in the neighborhood with trash bags is inconclusive. Remember thatt the state has to prove its case beyond a reasonable doubt or the defendant goes free. The only thing the police know for sure was that he was iin possession of stolen goods.

If you are not sure whether the police gave your information to the prosecutor, as the victim of the crime, you should contact the prosecutor's office and find out which of them is handling the case. Then you can give them all the other details you have. As you are the complainant on the case, the prosecutor should be happy to listen to what you know.
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Customer: replied 5 years ago.

To charge someone, don't the police need a preponderence of evidence, or a 51% chance they can prove it. If they would bring this kid in (he lawyered up and was supposed to be brought in yesterday but something happened and he didn't), he would definitely get scared even with the lawyer.

1- he had the stolen merchandise

2- he was seen twice coming from the direction of the house

3- he was seen with plastic bags

4- he has a drug problem

5- the guy he asked to drive him so he could sell the stolen material has told that to the cops

6- Isn't the above together enough circumstantial evidence to charge him with burglary?

Expert:  Zoey_ JD replied 5 years ago.

The police need probable cause to make an arrest and that's also what a prosecutor needs to file charges. All that is is a reasonable belief that a crime may have been committed and that a particular person may have done so. Your 51% analogy is a civil standard. Although not much evidence is needed to make an arrest, the prosecutor's trial burden is proof beyond a reasonable doubt. It's a much heavier standard because any doubt means an acquittal.

Yes, of course a prosecutor can make out his or her case circumstantially and even get a conviction. Whether he will do so here, will be his call, which is basically all I was trying to say. The police don't make the determination of what crimes get charged. I would not be at all surprised if they charged him with the burglary, but if they don't it's because they don't believe they can prove it beyond a reasonable doubt. When he was seen with this, and when the break in occurred would be part of the determination.