The formal filing of charges is the second step in the U.S. criminal justice system, following an arrest by a police officer or other law enforcement agent. Many people incorrectly assume that law enforcement agencies file criminal charges against suspects they apprehend in connection with crimes that have been committed. In reality, law enforcement officers are only responsible for gathering and protecting evidence and arresting suspected offenders; the actual charges are brought forth by prosecutors.
Just because a person has been arrested in connection with a crime does not mean that they will have charges filed against them. Prosecutors will only file charges if they feel that enough evidence exists to prove the person’s guilt.
When determining whether to file charges, prosecutors will review the police reports (also sometimes referred to as the arrest reports). The police officer or law enforcement agent responsible for the arrest usually will forward these reports straight to the prosecutor’s office, along with any witness statements that were collected. The decision to press charges then rests with the prosecutor.
While prosecutors typically base their decision of whether to file charges on the strength of the arrest reports, they are not limited by these reports as far as what charges they may file. Prosecutors have what is referred to as prosecutorial discretion. This means that a prosecutor may file charges that are more or less severe than those reported by the arresting law enforcement agency, based on the suspect’s criminal history or any other extenuating factors of the case at hand.
Prosecutorial discretion also gives the prosecutor the option to not file charges at all, if he or she feels that the evidence is not strong enough to support a conviction.