Ethical Standards of Prosecutors in Charging a Person with a Crime
Following are the ethical standards from the National Prosecution Standards of the National Defense Attorneys Association regarding the filing of charges against a person accused of a crime. Note how the standards use the word “victim” instead of “claimant” or “alleged victim.”
It is the ultimate responsibility of the prosecutor’s office to determine which criminal
charges should be prosecuted and against whom.
4-2.2 Propriety of Charges
A prosecutor should file charges that he or she believes adequately encompass the
accused’s criminal activity and which he or she reasonably believes can be substantiated
by admissible evidence at trial.
4-2.3 Improper Leveraging
The prosecutor should not file charges where the sole purpose is to obtain from the
accused a release of potential civil claims.
4-2.4 Factors to Consider
The prosecutor should only file those charges that are consistent with the interests of
justice. Factors that may be relevant to this decision include:
a. The nature of the offense, including whether the crime involves violence or
b. The probability of conviction;
c. The characteristics of the accused that are relevant to his or her
blameworthiness or responsibility, including the accused’s criminal history;
d. Potential deterrent value of a prosecution to the offender and to society at large;
e. The value to society of incapacitating the accused in the event of a conviction;
f. The willingness of the offender to cooperate with law enforcement;
g. The defendant’s relative level of culpability in the criminal activity;
h. The status of the victim, including the victim’s age or special vulnerability;
i. Whether the accused held a position of trust at the time of the offense;
j. Excessive costs of prosecution in relation to the seriousness of the offense;
k. Recommendation of the involved law enforcement personnel;
l. The impact of the crime on the community;
m. Any other aggravating or mitigating circumstances.
Following an initial screening decision that prosecution should be initiated, the charging
decision is the prerogative and responsibility of the prosecutor. The charging decision
entails determination of the following issues:
• What possible charges are appropriate to the offense or offenses; and
• What charge or charges would best serve the interests of justice?
In making a charging decision, the prosecutor should keep in mind the power he or she is
exercising at that point in time. The prosecutor is making a decision that will have a
profound effect on the lives of the person being charged, the person’s family, the victim,
the victim’s family, and the community as a whole. The magnitude of the charging
decision does not dictate that it be made timidly, but it does dictate that it should be made
wisely with the exercise of sound professional judgment.
There will be times when information not known at the time of charging will influence
future actions in a case. While it is advisable to gather all information possible prior to
charging, that is simply an unrealistic expectation. The prosecutor must balance the
importance of gathering information and the importance of public safety interests when
determining when he or she has sufficient information to make a charging decision.
While commencing a prosecution is permitted by most ethical standards upon a
determination that probable cause exists to believe that a crime has been committed and
that the defendant has committed it, the standard prescribes a higher standard for filing a
criminal charge. To suggest that the charging standard should be the prosecutor’s
reasonable belief that the charges can be substantiated by admissible evidence at trial is
recognition of the powerful effects of the initiation of criminal charges. Pursuant to the
prosecution’s duty to seek justice, the protection of the rights of all (even the prospective
defendant) is required.
The means by which a prosecutor elects to implement charging decisions is closely
related to the mechanism utilized in reaching screening decisions; indeed, the two
functions may be appropriately combined in a single individual or office division.
Diversion participation should only be done at the prosecutor’s discretion, and the
prosecutor should not yield to external pressures in either selecting a charge or deciding if
diversion alternatives are a proper course of action. Diversion may be done at any stage
of the proceeding, but with the option of continued prosecution. That does not preclude
diversion alternatives after a formal charge. At that stage, the threat of criminal
prosecution is even greater to the accused, and thus positive participation in diversion
alternatives and favorable results may be more likely.
Initial standards or guidelines for charging will be established by the chief prosecutor
only. In the one-person office, the chief prosecutor will also act as the agent for
implementing these guidelines. Larger offices may find it convenient, particularly in
respect to minor offenses, to delegate much of the responsibility for charging to selected
individuals or to establish a separate office division for intake procedures. The designated
individuals or office division should be responsible for reaching initial charging
decisions, subject to review and approval by the chief prosecutor.
The chief prosecutor should establish guidelines by which charging decisions may be
implemented. For the one-person office this formulation process will provide consistency
of operation and an incentive to develop and articulate specific policies. The same holds
true for other size offices.
Some prosecution offices employ vertical prosecution with great success, making the use
of guidelines important for consistent application.