In criminal law, prosecution is the process by which the government formally charges a person with a crime and pursues the case through the courts, from the charging decision through pretrial hearings, plea negotiations, trial, and sentencing. The term also refers to the government’s side of the case itself, which is why a judge saying “the prosecution rests” means the government’s lawyers have finished presenting their evidence. Unlike a civil lawsuit, a criminal prosecution is brought by a government attorney on behalf of the public, because a crime is treated as an offense against society rather than against the individual victim alone.
What Prosecution Covers
The word carries two overlapping meanings. One is the proceeding: the whole arc of a criminal case, beginning when a prosecutor files formal charges and ending at final judgment. The other is the party: the lawyers representing the government in that case.
Both meanings rest on the same principle. When someone breaks a criminal law, the offense is considered a wrong against the entire community, not just the person harmed. That is why case captions read “United States v. Smith” or “People v. Jones” rather than naming the victim as a party. The government is the enforcer. The victim may testify as a witness but does not control the case.
Criminal prosecution is distinct from civil enforcement actions brought by agencies like the SEC or FTC. Those proceedings can impose fines and injunctions, but they use a lower standard of proof and cannot send anyone to prison. Criminal prosecution is the only legal process that can result in incarceration, and it carries the highest evidentiary standard in the justice system.
Who Brings a Prosecution
Prosecutors are the government lawyers responsible for bringing and managing criminal cases. Their titles depend on whether the case is federal or state.
At the federal level, United States Attorneys prosecute all offenses against the United States within their assigned districts.1Office of the Law Revision Counsel. 28 U.S. Code 547 – Duties There are 94 federal judicial districts, each with a presidentially appointed U.S. Attorney who supervises a staff of Assistant U.S. Attorneys. The Attorney General heads the Department of Justice and sits atop the entire federal prosecution structure.
State and local prosecutors go by different names depending on the jurisdiction: District Attorney, State’s Attorney, County Attorney, or Commonwealth’s Attorney. The job is the same regardless of title: prosecuting crimes that violate state or local law within a geographic area.2Legal Information Institute. 15 U.S. Code 1692p – State or District Attorney
When a conflict of interest makes it inappropriate for the regular prosecutor to handle a case, a special counsel (sometimes called a special prosecutor) may be appointed. At the federal level, the Attorney General can appoint one to investigate matters where the Justice Department’s usual chain of command has a conflict. States follow similar practices when the elected prosecutor is disqualified or personally involved.
How Charges Get Filed
Before any charges can go forward, the prosecutor needs enough evidence to establish probable cause, meaning a reasonable person would believe a crime was committed and the suspect committed it. Prosecutors build that foundation by reviewing police reports, witness statements, forensic results, and other investigative materials, then comparing those facts against the elements of the criminal statute.
The Fifth Amendment adds a layer for serious federal crimes: no one can be prosecuted for a capital or “otherwise infamous” crime without a grand jury indictment.3Legal Information Institute. Grand Jury Clause Doctrine and Practice In practice, virtually all federal felonies go through a grand jury, which reviews the prosecutor’s evidence in a closed proceeding. If at least 12 grand jurors agree, they return an indictment.4Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury This requirement applies only in federal court. About half of states require grand jury indictments for felonies; the rest let prosecutors file charges directly through a document called an information.
Whatever form it takes, the charging document must identify the laws allegedly violated and lay out the factual basis for the accusation, giving the defendant enough detail to prepare a defense.5United States Department of Justice. Charging Once the prosecutor files it with the court clerk, the court typically issues either a summons or an arrest warrant to bring the defendant before a judge.
What the Prosecutor Decides
Prosecutors have enormous discretion over whether to bring charges at all. An arrest does not guarantee prosecution. Police may make the arrest, but the prosecutor independently decides whether the evidence justifies charges, which specific crimes to charge, and whether to offer alternatives such as diversion programs. The Supreme Court has recognized this discretion as inherent in the executive branch’s duty to enforce the law, holding that the decision whether to prosecute “generally rests entirely” in the prosecutor’s judgment as long as probable cause exists.6Congress.gov. Federal Prosecutorial Discretion: A Brief Overview
That discretion is not unlimited. The Constitution prohibits selective prosecution, meaning a prosecutor cannot single someone out based on race, religion, or other protected characteristics. It also bars vindictive prosecution, where charges are filed solely to punish someone for exercising a legal right such as appealing a conviction or refusing a plea.6Congress.gov. Federal Prosecutorial Discretion: A Brief Overview
Department of Justice policy tells federal prosecutors to file charges when the evidence will likely sustain a conviction, unless prosecution would serve no substantial federal interest, the person can be effectively prosecuted elsewhere, or an adequate non-criminal alternative exists. These internal guidelines are not legally binding, but U.S. Attorneys are expected to follow them as standard practice.6Congress.gov. Federal Prosecutorial Discretion: A Brief Overview
Because prosecutors wield this kind of power, the law shields them with absolute immunity from civil lawsuits for actions taken during the judicial phase of a case. The Supreme Court established this protection in Imbler v. Pachtman, holding that a prosecutor acting within the scope of duties in initiating and pursuing a criminal prosecution is immune from civil suits for damages even if the prosecution turns out to have been wrongful.7Justia U.S. Supreme Court. Imbler v. Pachtman, 424 U.S. 409 (1976) The immunity does not extend to investigative or administrative functions performed outside the courtroom context.
From Arraignment Through Resolution
The defendant’s first formal court appearance on the charges is the arraignment. Under federal rules, it must happen in open court and involves three steps: confirming the defendant has a copy of the charges, reading or explaining those charges, and asking for a plea.8Legal Information Institute. Federal Rules of Criminal Procedure Rule 10 – Arraignment Most defendants plead not guilty at this stage, even if they plan to negotiate later.
Plea bargaining resolves the vast majority of criminal prosecutions. According to Department of Justice data, roughly 90 to 95 percent of criminal cases end in a negotiated plea rather than a trial. A plea deal typically involves the defendant agreeing to plead guilty to reduced charges or in exchange for a lighter sentencing recommendation.
Before accepting any guilty plea, the judge must personally address the defendant in open court and confirm the plea is voluntary and informed. The court walks through the rights the defendant is giving up, the maximum possible penalties, any mandatory minimums, and the applicable sentencing guidelines.9Legal Information Institute. Federal Rules of Criminal Procedure Rule 11 – Pleas A judge who finds the defendant does not fully understand these consequences, or is being coerced, can reject the plea.
The Burden at Trial
When a prosecution goes to trial, the government bears the highest burden of proof in the legal system: proof beyond a reasonable doubt. The Due Process Clause requires this standard before anyone can be convicted of a crime.10Constitution Annotated. Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt Reasonable doubt does not mean the government must eliminate every imaginable possibility of innocence. It means the evidence must leave jurors firmly convinced the defendant is guilty.11Ninth Circuit District and Bankruptcy Courts. 3.5 Reasonable Doubt – Defined
The burden stays on the prosecution throughout the trial and never shifts to the defendant. The accused does not have to prove innocence, testify, or present any evidence. If the jury is not convinced beyond a reasonable doubt, its duty is to return a not-guilty verdict.11Ninth Circuit District and Bankruptcy Courts. 3.5 Reasonable Doubt – Defined
A judge can also end a prosecution before the jury deliberates. Under the federal rules, a defendant can move for a judgment of acquittal if the government’s evidence is insufficient to sustain a conviction. The judge can grant the motion after the prosecution rests, after all evidence is in, or even after a guilty verdict. The defendant has 14 days after a guilty verdict to file or renew this motion.12Legal Information Institute. Federal Rules of Criminal Procedure Rule 29 – Motion for a Judgment of Acquittal This is where weak prosecutions fall apart.
Civil enforcement actions, by comparison, use the lower “preponderance of the evidence” standard, which essentially means “more likely than not.” The gap between the two standards reflects the gap in stakes. A civil case can cost you money. A criminal prosecution can cost you your freedom.
Constitutional Limits on Prosecution
The Sixth Amendment provides a bundle of rights that apply specifically to criminal prosecutions. It guarantees the accused the right to a speedy and public trial, an impartial jury, notice of the charges, the ability to confront opposing witnesses, the power to compel favorable witnesses to appear, and the assistance of a lawyer.13Constitution Annotated. U.S. Constitution – Sixth Amendment A prosecution that violates any of these rights can result in a dismissed case or an overturned conviction.
The right to counsel is especially consequential. If you cannot afford an attorney, the court must appoint one at every critical stage of the prosecution, from arraignment through sentencing and a first appeal. This right attaches when formal charges are filed or when the defendant first appears before a judge, whichever comes first.
The Speedy Trial Requirement
At the federal level, the Sixth Amendment’s speedy trial guarantee is enforced by the Speedy Trial Act. The statute requires that an indictment or information be filed within 30 days of the defendant’s arrest.14Office of the Law Revision Counsel. 18 U.S. Code 3161 – Time Limits and Exclusions Once charges are filed, trial must begin within 70 days of the filing date or the defendant’s first court appearance, whichever is later. Certain delays are excludable, including time for pretrial motions, competency evaluations, and continuances granted in the interest of justice. The clock creates real pressure on prosecutors to move cases or risk dismissal.
Double Jeopardy
The Fifth Amendment’s Double Jeopardy Clause prevents the government from prosecuting you twice for the same offense.15Legal Information Institute. Fifth Amendment If a jury acquits you, the prosecution cannot appeal that verdict or retry you, no matter how strong the evidence might seem. The clause also prevents the government from punishing you twice for the same crime after a conviction.
One major exception applies. Under the dual sovereignty doctrine, upheld in Gamble v. United States (2019), a state prosecution and a federal prosecution for the same underlying conduct are considered separate offenses by separate sovereigns. Someone acquitted in state court can still face federal charges based on the same events, and vice versa.16Constitution Annotated. Overview of Double Jeopardy Clause
Deadlines to Prosecute
Prosecutors cannot wait indefinitely. Statutes of limitations set deadlines for filing, and once the clock runs out, prosecution is barred regardless of how strong the evidence is.
The general federal statute of limitations is five years for non-capital offenses. The indictment must be found or the information filed within five years after the crime was committed.17Office of the Law Revision Counsel. 18 U.S. Code 3282 – Offenses Not Capital Many specific crimes carry longer or shorter windows. Tax evasion has a six-year limit. Certain fraud offenses involving financial institutions allow ten years.
Some crimes have no statute of limitations at all. Federal capital offenses, murder, terrorism resulting in death, and espionage can be prosecuted at any time. State time limits vary widely, from as few as two years for some lower-level felonies to no limit for murder in virtually every jurisdiction.
Where the Victim Fits In
Crime victims are not bystanders in a prosecution. Under the Crime Victims’ Rights Act, federal law guarantees them specific rights throughout the process: reasonable protection from the accused, timely notice of court proceedings and any release or escape, the right to attend public proceedings, the right to be heard at hearings involving release, plea agreements, and sentencing, the right to confer with the government’s attorney, the right to full and timely restitution as provided by law, and the right to be informed of any plea bargain or deferred prosecution agreement.18Office of the Law Revision Counsel. 18 U.S. Code 3771 – Crime Victims’ Rights Most states have parallel protections, and many have added victims’ rights provisions to their state constitutions.
One boundary matters. The victim has a right to participate and be heard, but the prosecutor still makes the final decisions about how to handle the case. Victims can push for certain outcomes, but they cannot force the government to file charges or reject a plea deal. The case belongs to the public, and the prosecutor represents the public.