How Do Prosecutors Decide When to File Criminal Charges?

By Charles D Scott, Esquire

When I first graduated from law school, I went to work for the Pinellas State Attorneys office as an Assistant State Attorney. I handled prosecution of misdemeanor and traffic offenses including conducting numerous jury trials. One of the most important things that I learned as a prosecutor was, that the decision to file criminal charges rests upon the state attorneys office and not any outside individual.

There were times when an alleged victim of crime was insisting that charges be filed, but the evidence simply did not support filing charges. There were other instances when evidence supported filing charges but a victim recanted, or asked that the charges be dropped.

In both instances it is the absolute duty of the prosecutor to make the decision, and not be influenced by any outside pressure. The prosecutor has an ethical obligation only to file criminal charges when he or she has a good faith belief in the prosecution, and where the evidence supports bringing charges.  The prosecutor should not in any case ever be influenced by an outside individual.

According to the National Prosecution Standards, Third Edition , the prosecutor is an independent administrator of justice in the criminal justice system, which can only be accomplished through the representation and presentation of the truth. The primary responsibility of a prosecutor is to seek justice. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected.

A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client and therefore should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases.

The decision to initiate a criminal prosecution should be made by the prosecutor’s office. Where state law allows criminal charges to be initiated by law enforcement or by other persons or means, prosecutors should, at the earliest practical time, decide whether the charges should be pursued.

The chief prosecutor should recognize and emphasize the importance of the initial charging decision and should provide appropriate training and guidance to prosecutors regarding the exercise of their discretion.

Prosecutors should screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not in the public interest.

Factors that may be considered in this decision include:

a. Doubt about the accused's guilt;

b. Insufficiency of admissible evidence to support a conviction;

c. The negative impact of a prosecution on a victim;

d. The availability of adequate civil remedies;

e. The availability of suitable diversion and rehabilitative programs

f. Provisions for restitution;

g. Likelihood of prosecution by another criminal justice authority;

h. Whether non-prosecution would assist in achieving other legitimate goals, such

as the investigation or prosecution of more serious offenses;

i. The charging decisions made for similarly-situated defendants;

j. The attitude and mental status of the accused;

k. Undue hardship that would be caused to the accused by the prosecution;

l. A history of non-enforcement of the applicable law;

m. Failure of law enforcement to perform necessary duties or investigations;

n. The expressed desire of an accused to release potential civil claims against

victims, witnesses, law enforcement agencies and their personnel, or the

prosecutor and his personnel, where such desire is expressed after having

the opportunity to obtain advice of counsel and is knowing and voluntary;

o. Whether the alleged crime represents a substantial departure from the accused’s

history of living a law-abiding life;

p. Whether the accused has already suffered substantial loss in connection with

the alleged crime;

q. Whether the size of the loss or the extent of the harm caused by the alleged

crime is too small to warrant a criminal sanction;

Factors that should not be considered in the screening decision include the following:

a. The prosecutor’s individual or the prosecutor’s office rate of conviction;

b. Personal advantages or disadvantages that a prosecution might bring to the

prosecutor or others in the prosecutor’s office;

c. Political advantages or disadvantages that a prosecution might bring to the


d. Characteristics of the accused that have been recognized as the basis for

invidious discrimination, insofar as those factors are not pertinent to the

elements or motive of the crime;

e. The impact of any potential asset forfeiture to the extent described in Standard

For more information or a free consultation on your legal issue contact The Law Offices of Charles D. Scott PLLC, your injury law and family law attorneys, at 727-300-4878.

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