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Prosecutorial Discretion

Definition

The power of a public prosecutor to decide whether to charge a suspect, what charges to bring, and on what terms to resolve a case. Most systems structure this discretion through formal charging standards or guidelines, but significant latitude remains.

Decisions covered
Whether to charge, what charges, plea terms
Constraint
Formal charging standards or guidelines
Latitude
Significant discretion remains despite guidelines
Relevance
Case attrition, forensic evidence never reaching trial

Common questions

How does prosecutorial discretion affect forensic evidence that has already been analysed?+

A prosecutor can decline to charge or later drop a case even after forensic testing confirms a link, for reasons unrelated to the science such as witness reliability or public interest, which is one route by which cases attrite despite strong physical evidence.

Can prosecutorial discretion be judicially reviewed?+

Most systems limit judicial review of a charging decision to narrow grounds such as bad faith, discrimination, or vindictive prosecution, leaving the ordinary exercise of discretion largely unreviewable by courts.

Related terms

Case Attrition
The cumulative reduction in the number of criminal matters as they pass from offence committed through reporting, recording, charging, and trial to...
Courtroom Workgroup
The informal cooperative relationship among judges, prosecutors, and defence lawyers who regularly interact in the same court. First described by James Eisenstein...
Evidential Test
The threshold question that asks whether there is sufficient admissible evidence to give a realistic or reasonable prospect of conviction. It is...
Nolle Prosequi
A formal decision by the prosecution to discontinue proceedings against a defendant, often recorded as an entry in the court record. It...
Plea Bargain
An agreement between prosecution and defence in which the defendant pleads guilty, typically in exchange for a reduced charge, a sentencing concession,...

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