<P> In Scots law, all common law offences other than those within the exclusive jurisdiction of the High Court of Justiciary (i.e. murder, treason, rape and breach of duty by magistrates) can be tried either summarily in the justice of the peace courts or Sheriff Courts, or on indictment in the High Court of Justiciary or Sheriff Court . For statutory offences, the statute will provide whether the offence is triable summarily, on indictment, or both . </P> <P> The choice of forum is a matter for the Lord Advocate and procurator fiscal, and is determined in a process known as marking . </P> <P> In U.S. states in which these offenses occur, the prosecuting attorney has discretion in deciding which category to charge the defendant . Prosecutors may strategically file such offenses as felonies, agreeing to refile the charge as a misdemeanor should the defendant consent to a guilty plea . </P> <P> After hearing evidence at a preliminary hearing, the judge or magistrate has discretion to reduce a felony wobbler to a misdemeanor charge; the opposite is not permitted . </P>

Who decides how to prosecute a hybrid offence