When a case goes to the DA, a prosecutor independently reviews the police file and decides whether to file criminal charges, decline the case, send it back for more investigation, or offer a diversion program. A referral from police is not a charge, and prosecutors reject a significant share of what law enforcement brings them. The decision belongs to the DA’s office alone.
What the DA Receives From Police
When a law enforcement agency finishes investigating, it hands the DA a case file containing everything gathered during the inquiry. That typically means the police report, signed witness statements, victim interviews, forensic results such as DNA or ballistics testing, an inventory of physical evidence, and the suspect’s criminal history.
The investigating officer may also include a recommendation on whether to charge. That recommendation carries no binding weight. Prosecutors evaluate the evidence on their own terms and routinely reach different conclusions than the officers who made the arrest.
How the DA Decides Whether to File Charges
The charging decision rests on prosecutorial discretion. Federal guidelines give a prosecutor “wide latitude in determining when, whom, how, and even whether to prosecute,” and state prosecutors operate under similar principles. The question is not just whether the suspect probably committed the crime. It is whether a jury will more likely than not find the defendant guilty beyond a reasonable doubt, and whether that conviction would survive an appeal.1United States Department of Justice. Principles of Federal Prosecution – Section: 9-27.220 Grounds for Commencing or Declining Prosecution That is a far higher bar than the probable cause police need to make an arrest.
Evidence strength is the center of the analysis, but it is not the only factor. Prosecutors also weigh the seriousness of the offense, whether prosecution would deter future crime, the suspect’s criminal history, the suspect’s willingness to cooperate in other investigations, and the impact on victims. Office resources matter too. No prosecutor’s office can pursue every case, so charging decisions involve prioritization.2United States Department of Justice. Principles of Federal Prosecution – Section: 9-27.230 Initiating and Declining Charges
The “Pressing Charges” Misconception
A widespread belief is that victims decide whether charges get filed. They do not. The prosecutor makes that call. A victim cannot force the DA to file charges, and a victim cannot make the DA drop them. That said, a victim’s willingness to cooperate and testify is a practical factor the DA weighs heavily. A case built primarily on a victim’s testimony becomes much harder to prove when the victim refuses to participate, and prosecutors know this.
The Four Possible Outcomes
After reviewing the file, the DA’s office lands on one of four paths.
Filing formal charges. If the prosecutor believes the evidence can secure a conviction, charges are filed. Depending on the jurisdiction and the severity of the offense, the prosecutor either files a charging document directly with the court or presents evidence to a grand jury to seek an indictment.3United States Department of Justice. Charging
Declining to prosecute. The DA may reject the case entirely. Common reasons include insufficient evidence, an uncooperative key witness, evidence obtained through a constitutional violation, or a judgment that prosecution would not serve the public interest. A rejection is not always permanent. If significant new evidence surfaces, the DA can revisit the decision as long as the statute of limitations has not expired.
Requesting further investigation. Sometimes a prosecutor sees a viable case that needs more work. The DA can send the file back to law enforcement with specific requests, such as locating additional witnesses, re-interviewing someone, or running further forensic tests.
Offering a diversion program. For certain defendants, particularly first-time offenders facing nonviolent charges, the DA may offer an alternative to traditional prosecution. Pretrial diversion routes participants into community supervision, treatment, or restitution. Successful completion can result in charges being dismissed or never filed at all. Federal guidelines exclude certain offenses from diversion eligibility, including crimes involving child exploitation, serious bodily injury, or firearms.4United States Department of Justice. Justice Manual 9-22.000 – Pretrial Diversion Program
How Long the DA Has to Decide
There is no single universal deadline. How quickly the DA acts depends on whether the suspect is in custody, how complex the case is, and which jurisdiction controls.
When the Suspect Is in Custody
If someone has been arrested and is sitting in jail, the clock ticks faster. In County of Riverside v. McLaughlin, the Supreme Court held that a person arrested without a warrant must receive a judicial probable cause determination within 48 hours. That hearing is not the same as a charging decision, but it creates practical pressure: if a judge finds insufficient probable cause, the suspect must be released. Most states require prosecutors to file formal charges within 48 to 72 hours of arrest, though the exact window varies.
When the Suspect Is Not in Custody
When no one is behind bars, the DA often has considerably more time. Under the federal Speedy Trial Act, an indictment or charging document must be filed within 30 days of arrest or summons.5Office of the Law Revision Counsel. 18 U.S. Code 3161 – Time Limits and Exclusions If the suspect was never arrested, the statute of limitations becomes the only outer boundary. Complex investigations involving financial crimes or large-scale fraud can take months or years before the DA is ready.
Statutes of Limitations
A statute of limitations sets a deadline for how long after a crime the government can bring charges. Under federal law, most non-capital offenses carry a five-year limit.6Office of the Law Revision Counsel. 18 U.S. Code 3282 – Offenses Not Capital Crimes punishable by death have no time limit at all.7United States Department of Justice Archives. Criminal Resource Manual 650 – Length of Limitations Period State periods vary widely. Murder almost universally has no state-level time limit, while misdemeanors often carry limits of one to three years. These deadlines can be paused, or “tolled,” in certain circumstances, often triggered when a suspect flees the jurisdiction or when the victim is a minor.
What Happens If the DA Files Charges
Arraignment
Once charges are officially filed, the defendant appears in court for an arraignment. Three things happen there: the defendant receives a copy of the charges, the charges are read or summarized aloud, and the defendant enters a plea.8Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 10 – Arraignment Most defendants plead not guilty at this stage, even if they later plan to negotiate a plea deal. The court also informs the defendant of key rights, including the right to an attorney (and the right to have one appointed if the defendant cannot afford one), the right to remain silent, and the circumstances under which pretrial release is available.9Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 5 – Initial Appearance
Bail and Pretrial Release
At or shortly after the arraignment, a judge decides whether to release the defendant before trial and under what conditions. The decision turns on the seriousness of the charges, the defendant’s criminal history, ties to the community, flight risk, and whether release would endanger anyone. Bail amounts vary enormously. Some defendants are released on their own recognizance with no money required, while others face amounts that effectively keep them jailed until trial.
Plea Bargaining
Most criminal cases never go to trial. They resolve through plea bargaining, where the prosecutor and defense negotiate an agreement. The prosecutor might reduce the number or severity of charges in exchange for a guilty plea. This is where the DA’s initial charging decision carries extra weight: prosecutors sometimes file more serious charges than they expect to ultimately prove, giving themselves leverage to negotiate a plea to lesser offenses.
If You Are the Suspect
The period between arrest and a charging decision is not a time to wait passively. Get a lawyer as early as possible. The constitutional right to a court-appointed attorney does not formally attach until judicial proceedings begin through a charge, indictment, or arraignment. But you always have the right to hire your own attorney, and you should exercise it the moment you learn you are under investigation or have been arrested. An attorney can communicate with the DA’s office on your behalf, potentially influencing the charging decision before it is made.
Do not make statements to police or prosecutors without your attorney present. Anything you say during this period can and will be used against you. The instinct to explain your side is understandable but almost always counterproductive.
If the DA ultimately declines to file charges, your arrest record does not disappear on its own. An arrest creates a permanent record that shows up on background checks for employment, housing, and licensing, even when no charges are ever filed. Most states offer some form of expungement or record sealing for arrests that do not result in conviction, but you typically have to petition for it.
If You Are the Victim
If you are the victim of a crime, the DA’s process can feel frustratingly opaque. Federal law gives crime victims specific rights during prosecution. These include timely notice of court proceedings, the right to attend those proceedings, the right to be heard at hearings involving release or sentencing, and the right to confer with the prosecutor handling the case. Victims also have the right to be told about any plea bargain or deferred prosecution agreement before it is finalized. Most states have enacted similar protections. Government officials involved in the case are required to make their “best efforts” to ensure victims are notified of and afforded these rights.10Office of the Law Revision Counsel. 18 U.S. Code 3771 – Crime Victims Rights
Even with these protections, the DA controls the charging decision. Your cooperation and testimony are valuable, and a good prosecutor’s office will keep you informed, but the final call on whether and how to prosecute belongs to the government.