This is one of the questions that I am asked most often. The answer is they can't! The problem is that sometimes we (the defense) and prosecutors have a different idea of what is evidence and what is not. Additionally, the evidence required for someone to be arrested is way different than the evidence required to convict someone of a crime.
Burdens of Proof - Arrest v. Conviction
In Georgia, there are many burdens of proof. A burden of proof is the amount of evidence required for something to happen. In Georgia, probable cause is the standard for an arrest to be made and a prosecution to commence.
The burden of proof for a conviction is beyond a reasonable doubt is way different than the burden to be arrested. Remember, you are innocent until you are proven guilty beyond a reasonable doubt. An arrest is not a conviction!
Probable Cause for an Arrest
Probable cause is one of the lowest standards in the entire American court system. It is often based on circumstantial evidence and hearsay and there is no chance for the defense to dispute the evidence before an arrest is made and a prosecution commences.
There is a saying that a grand jury would indict a ham sandwich. This stands true in Georgia. Grand juries, prosecutors, and cops quickly jump to a conclusion and then ask questions later. Although this is backward, it is the truth. It takes work from the defense to this quick conclusion made by the government. There are many ways for the government to say there is probable cause against you.
Different Ways for Arrest to Occur
Warrantless Arrest - Under certain situations cops can make arrests without a warrant. They are allowed to make arrests if an alleged offense is committed in the officer's presence or within the officers' immediate knowledge, or if the alleged offender is trying to escape, or if the officer believes that an act of family violence occurred, or "for other cause there is likely to be failure of justice of want of a judicial officer to issue a warrant.
So, the sad reality is that cops can essentially arrest anyone, at any time, for anything without a warrant if they are willing to sign their name to an affidavit saying it happened.
Warrant for Arrest - A lot of times officers do get a warrant for someone's arrest. This happens when an officer goes to a judge and explains to them their side of the story as to what happened (of course we don't get to go and present our side). Once that arrest warrant is issued the warrant will be placed into a system maintained by the GBI and eventually you will be arrested on that warrant.
Grand Jury Indicts - Sometimes, often in serious cases, there will be no warrant issued until a grand jury considers a case. More on grand juries here. When a grand jury finds probable cause, and they almost always do because, once again, we can't go and present our side of the story. A judge will sign an arrest order that orders you be arrested.
Burden for Conviction - Beyond a Reasonable Doubt
The burden for convicting someone of a crime is substantially higher than it is to arrest someone. For you to be convicted they must prove you are guilty beyond a reasonable doubt. They only ways for a conviction to occur is 1) you plead guilty, or 2) you are found guilty at trial.
A trial is where the evidence really matters and where you have a chance to cross-examine the state's witnesses, challenge their evidence, and present your own evidence.
So, How did they Arrest Me with No Evidence?
So, in sum, it is easy for cops to arrest someone. At that point, we haven't had the chance to challenge their evidence or present our side of the story. it is much harder for the government convict you, and it is important that you have a lawyer on your side to protect your rights and make sure your side of the story is heard by everyone.
If you have been arrested, contact us and let us help you through this difficult time.