How do prosecutors decide whether to file criminal charges?

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In order to uphold their duty as government agents and seekers of justice, prosecutors are supposed to carefully evaluate whether to file charges as each case arises. Though it’s often difficult to hold prosecutors accountable for failing to do so, there may be repercussions in egregious cases. For example, the chief prosecutor in the Duke lacrosse case was subject to a malicious prosecution lawsuit, state bar disciplinary proceedings, and criminal contempt of court charges. (For more on abuse-of-authority repercussions, see Jail Time for Prosecutorial Misconduct.)  

Before filing charges, prosecutors are generally required to (internally) answer each of the following questions—or questions conveying the same meaning—in the affirmative.

  • Is there sufficient evidence of all elements of the crime?
  • Am I (the prosecutor) convinced that the defendant is guilty?
  • Does the evidence support the conclusion that the available evidence will lead to a conviction by the beyond-a-reasonable-doubt standard?

by: , Attorney

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