Prosecutorial Discretion

Gatekeepers to the Criminal Courts

Prosecutors have been referred to as “the most influential of the courthouse actors” (Neubauer 1999: 9), but their role can begin long before a criminal case reaches the courthouse. While the role of the prosecutor is often thought of as beginning only after an arrest has been made, prosecutors sometimes directly investigate allegations of criminal activity. Such investigations may be conducted by the prosecutor's staff or the police, or may involve the two working together. A prosecutor decides which complaints will be investigated and the extent of that investigation. Only those that the prosecutor decides warrant further attention have the potential to enter the court system. If an investigation does not reveal evidence that the prosecutor feels is sufficient to warrant further action, the suspect does not become a criminal defendant. In most cases, whether guilty or innocent, suspects will not even know that they have been under investigation. Complex cases involving organized crime or white-collar offenses often begin as investigations within the prosecutor's office. In such cases, only after evidence has been collected and successfully presented to a grand jury for an indictment do warrants issue and arrests occur.

The grand jury is one of the oldest Anglo American criminal justice institutions. Although abolished in the United Kingdom, it has been retained in most U.S. states. Ideally, the grand jury is an independent mechanism for screening the prosecution's evidence in felony cases. In practice, however, whether an indictment is issued is very much influenced by the prosecutor: It is the prosecutor who decides whether to place a case before the grand jury, which evidence to present, and how it is presented. And since at trial there must be enough evidence to sustain a finding of guilt beyond a reasonable doubt, the prosecutor always focuses on evidence that indicates guilt.

In order to determine the charges in a given case, a prosecutor must have a working knowledge of the criminal statutes in his or her jurisdiction, because in order to sustain a conviction the available evidence must match the requirements of the law. If the alleged actions fit the definition of more than one offense, it is the prosecutor who decides which charges are most appropriate. Indictments may contain multiple charges and counts, and some prosecutors have been accused of overcharging defendants in order to induce a plea bargain.

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