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In a U.S. federal criminal investigation, prosecutors decide whether the evidence and circumstances warrant prosecution—and may instead request more investigation, refer the matter, pursue diversion or another noncriminal outcome, or decline it. Probable cause is the minimum threshold for federal prosecution under Department of Justice (DOJ) guidance, not a guarantee that charges will be filed. State and local prosecutors follow their own laws and policies, so federal practice is not a nationwide rulebook.
What prosecutorial discretion means
Prosecutorial discretion is the authority to make choices about whether and how to pursue an apparent violation of criminal law. The DOJ describes federal prosecutors as having “wide latitude” over when, whom, and how to prosecute. That latitude is structured by law and internal policy, but it is not a mechanical decision based on a single factor.
The explanation below focuses on federal DOJ practice. The Justice Manual’s prosecution principles are guidance for DOJ personnel; the Manual says they do not create rights or benefits for defendants or others. A state, county, or municipal prosecutor may operate under different statutes, office rules, and diversion programs.
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There is no single sequence that fits every matter. Prosecutors review investigative materials, consult with investigators, and may revisit the evidence as the case develops. DOJ’s Justice Manual, Chapter 9-27 identifies several possible courses of action.
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- Review the evidence and investigation. Prosecutors assess what the investigation establishes and may ask investigators to do additional work. Further investigation remains an option even when the probable-cause threshold can be met.
- Assess probable cause. DOJ guidance treats probable cause as the minimum requirement to initiate a federal prosecution. If it is absent, the guidance says prosecution should not be initiated. If it is present, that does not settle whether prosecution is appropriate.
- Choose a course of action. Options include prosecuting, seeking further investigation, referring the matter for consideration by another jurisdiction, pursuing pretrial diversion or another noncriminal disposition, or declining without further action. Whether diversion or another alternative is available depends on policy and the individual case.
- If prosecuting, select supported charges. DOJ calls for an individualized assessment of charges that fairly reflect the conduct. Charge selection is not simply a calculation of the largest possible penalty; prosecutors also consider the purposes of federal criminal law and responsible use of federal resources.
- Record and communicate a declination. DOJ guidance calls for federal offices to document a declination and its reasons in office files and communicate it to the investigating agency and other interested agencies. If a serious matter is declined because another authority is expected to act, appropriate follow-up should help ensure it receives attention.
Probable cause is a threshold, not a command to charge
Probable cause and proof beyond a reasonable doubt are different standards serving different stages. Probable cause is the minimum threshold DOJ guidance sets for initiating federal prosecution; proof beyond a reasonable doubt is the standard the prosecution must meet to obtain a criminal conviction at trial. A prosecutor’s conclusion that probable cause exists does not mean a jury would convict, nor does it automatically require a charge.
The Justice Manual states that even when probable cause can be established, further investigation may be warranted and the prosecutor should consider other relevant circumstances before choosing a course of action.
What prosecutors weigh
The DOJ framework calls for an individualized decision. Relevant considerations include whether prosecution would serve a substantial federal interest, whether another jurisdiction can prosecute, and whether a noncriminal alternative is appropriate. The DOJ Inspector General’s explanation of the Manual’s considerations also identifies factors such as:
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- The person’s culpability and criminal history.
- Deterrence, cooperation, and the likely sentence or other consequences.
- Whether another jurisdiction or a noncriminal disposition can address the matter.
These are considerations, not a public scoring system. Their weight depends on the facts and the applicable law and policy. An older Office of Justice Programs catalog record describes a federal study using Federal Justice Statistics Program data from 2002–2010; it does not establish a current national declination rate.
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Limits on federal prosecutorial discretion
Broad discretion does not mean any reason or tactic is acceptable. DOJ’s internal principles identify considerations that must not influence prosecution decisions, including specified protected traits, a prosecutor’s personal feelings about a person or victim, and the prosecutor’s own professional or personal interests.
The Justice Manual also says prosecutors may not file or threaten charges or statutory sentencing enhancements simply to pressure someone into a plea or because the person exercised the right to trial. It further bars prosecutors and agents from timing an investigation or charge to affect an election or advantage or disadvantage a candidate or political party.
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These are DOJ policy constraints, but the Manual itself cautions that its principles and office procedures do not create enforceable rights or benefits. An alleged departure from the Manual does not, by itself, automatically invalidate charges or give someone a standalone legal claim; the effect in a particular case depends on governing law and facts.
What a federal declination does—and does not—mean
A federal declination means federal prosecutors have decided not to commence or recommend federal prosecution. By itself, it does not establish that no crime occurred, that evidence was false, or that the person is legally innocent. Nor does it prevent a state or another authority from making its own decision under its own law. DOJ guidance contemplates referral and coordination with other authorities, including follow-up in serious matters expected to be handled elsewhere.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Common questions at the investigation stage
Can a prosecutor decline a case after an arrest?
Yes. An arrest and a federal charging decision are distinct stages. An arrest does not compel federal prosecutors to file charges; after reviewing the matter, DOJ guidance allows for further investigation, referral, diversion or another noncriminal disposition, or declination.
Can the prosecutor ask investigators to do more?
Yes. Further investigation is one of the options listed in the Justice Manual, including when probable cause may already exist.
Does a federal declination prove innocence or rule out state charges?
No. It is a federal prosecution decision, not a finding that no crime occurred, and another jurisdiction’s authority and decision are separate.
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Sources and scope
- U.S. Department of Justice, Justice Manual, Chapter 9-27: Principles of Federal Prosecution — primary source for federal DOJ policy.
- U.S. Department of Justice Office of the Inspector General, Audit of the Department of Justice’s Efforts to Address Sexual Harassment and Misconduct at the Department of Justice — cited here only for its explanation of prosecution considerations, not for current rates.
- Office of Justice Programs, Examining Prosecutorial Discretion in Federal Criminal Cases: Legal and Extra-Legal Determinants of Declination and Charge Change Decisions — catalog record describing data from 2002–2010.
- Cornell Legal Information Institute, “Prosecutorial Discretion” — general secondary explanation of the term.
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