Prosecutor’s Function 
Prosecutors arguably have more discretion than any other official in the criminal justice system.  They 
decide whether to charge an individual or not.  Much has been written about the prosecutor’s broad 
discretion and the constraints on his or her discretion.  If they choose not to prosecute, this is referred to 
as nolle prosequi, and this decision is largely unreviewable. Spohn and Hemmens (2012, p. 123) concluded 
in their review of the studies on prosecutor’s charging decisions that “these highly discretionary and largely 
invisible decisions reflect a mix of (1) legally relevant measures of case seriousness and evidence strength and 
(2) legally irrelevant characteristics of the victim and the suspect” 
2. 
Prosecutors guide the criminal investigation and work with law enforcement to procure search and arrest 
warrants. Following arrest, prosecutors continue to be involved with various aspects of the investigation. 
Roles include: meet with the arresting officers, interview witnesses, visit the crime scene, review the physical 
evidence, determine the offenders prior criminal history, make bail and release recommendations, appear on 
pretrial motions, initiate plea negotiations, initiate diversions (pre-trial contracts between the government 
and the defendant which divert cases out of the system), work with law enforcement officers from other 
states who seek to extradite offenders, prepare the accusation to present to grand jury,  call witnesses and 
present a prima facia case (present enough evidence which, when unrebutted by the defendant, shows that 
the defendant committed the crime) at a preliminary hearing, represent that state at arraignments and status 
conferences, conduct the trial, and, upon conviction, make sentencing recommendations while representing 
the state at the sentencing hearing. 
In many communities, the prosecutor is the spokesperson for the criminal justice system and appears 
before the legislature to recommend or oppose penal reform. Prosecutors make public speeches on crime and 
law enforcement, take positions on requests for clemency for cases they have prosecuted, work extensively 
with victims’ services offices, which may be an arm of the prosecutor’s office. In some communities, the 
prosecutor is also responsible for representing the local government in civil matters and may represent the 
state in civil commitment proceedings and answer accident claims, contract claims, and labor relation matters 
for the county.  However,  only a few counties have prosecutors still perform this function. U.S. Attorneys 
still have substantial responsibilities for representation of the U.S. government in civil litigation, and there is 
generally a civil division, a criminal division, and an appellate division of the U.S Attorneys office. 
The American Bar Association (ABA) standards indicate that “the prosecutor’s [ethical] duty is to seek 
justice”. This means that the state should not go forward with prosecution if there is insufficient evidence of 
the defendant’s guilt or if the state has “unclean hands”, for example, illegally conducted searches or seizures 
or illegally obtained confessions. Ethical and disciplinary rules of the state bar associations govern prosecutors 
who must also follow state and constitutional directives when they prosecute crimes. 
Link to the ABA Standards on the Prosecution Function https://www.americanbar.org/groups/
criminal_justice/standards/ProsecutionFunctionFourthEdition-TableofContents/ 
2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc. 
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SANCHEZ
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