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In a U.S. federal criminal investigation, prosecutors decide whether the evidence and circumstances justify federal prosecution, and what course to take. They may seek more investigation, bring charges, refer the matter to another jurisdiction, pursue diversion or another noncriminal disposition, or decline prosecution. Probable cause is a minimum threshold under Department of Justice (DOJ) guidance—not a command to charge every case that meets it.
What prosecutorial discretion means
Prosecutorial discretion is the authority to decide when, whom, how, and whether to prosecute apparent violations of criminal law. The DOJ describes federal prosecutors as having “wide latitude” in making those decisions. That latitude is not unlimited: prosecutors must act within governing law and are guided by DOJ policies in the Justice Manual.
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This explanation uses federal DOJ practice as its baseline. State, county, and municipal prosecutors operate under their own laws, office policies, and diversion systems; federal procedures should not be assumed to apply nationwide. The Justice Manual’s principles are internal guidance and do not themselves create rights or benefits for individuals.
How a federal charging decision takes shape
The process is not necessarily a fixed sequence. Prosecutors review investigative material with law-enforcement agencies, assess the evidence and applicable law, and may ask investigators for additional work before choosing a disposition.
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Review the evidence and investigate further if needed
A prosecutor may conclude that more investigative work is appropriate rather than decide immediately whether to charge. DOJ guidance expressly includes further investigation among the options, including when probable cause could be established. A request for more work does not by itself mean charges will follow.
Apply the probable-cause threshold
Under DOJ guidance, probable cause is the minimum requirement for initiating federal prosecution. If it is absent, the guidance says federal prosecution should not be initiated. If it is present, that only clears a threshold: it does not automatically make prosecution appropriate. Probable cause is also distinct from the trial standard of proof beyond a reasonable doubt.
Choose a disposition
After reviewing the matter, a prosecutor may choose among several paths. The appropriate option depends on the evidence, jurisdiction, circumstances, and applicable policy.
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- Prosecute: Bring or recommend federal charges supported by the evidence and law.
- Continue investigating: Seek additional evidence or clarification before deciding.
- Refer the matter: Send it to another jurisdiction for consideration, such as a state authority with relevant prosecutorial authority.
- Use diversion or another noncriminal disposition: Consider an alternative to prosecution where applicable policies and case facts allow it.
- Decline: Decide not to commence or recommend federal prosecution, with or without another action.
Select charges if prosecution proceeds
Charge selection is an individualized judgment, not a mechanical calculation of possible penalties. DOJ guidance calls for charges that fairly reflect the defendant’s conduct and considers the purposes of federal criminal law and efficient use of federal resources.
Record and coordinate a declination
When federal prosecution is declined, DOJ guidance calls for the decision and reasons to be recorded in office files and communicated to the investigating agency and other interested agencies. If a serious matter is declined on the understanding that another authority will act, appropriate follow-up should help ensure that it receives attention.
What factors can influence the decision?
DOJ guidance asks prosecutors to consider whether a substantial federal interest would be served, whether another jurisdiction can prosecute, and whether a noncriminal alternative is appropriate. The DOJ Office of the Inspector General’s explanation of the Justice Manual also identifies considerations such as federal law-enforcement priorities, seriousness of the offense, deterrence, culpability, criminal history, cooperation, and likely sentence or other consequences.
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These are considerations, not a public scoring formula. The prosecutor is expected to assess the individual case rather than apply a single factor or automatic rule. A case’s evidence and legal threshold matter, but so do the jurisdiction’s role, the conduct’s seriousness, the person’s circumstances, and available alternatives.
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Prosecutors must comply with governing law. DOJ policy also identifies considerations that must not drive a federal prosecution decision: listed protected traits; a prosecutor’s personal feelings about a person or victim; or the prosecutor’s own professional or personal interests.
DOJ further says prosecutors may not file or threaten charges or sentencing enhancements simply to gain leverage for a plea or because a defendant exercised the right to trial. Prosecutors and agents may not time an investigation or charge to affect an election or to advantage or disadvantage a candidate or political party.
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The Justice Manual is guidance for DOJ personnel, not a guarantee of a particular outcome. An alleged departure from it does not automatically invalidate charges or give a defendant a standalone legal claim. The consequences in a specific case depend on applicable law and facts.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.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 the evidence was false, or that the person has been found innocent. Nor does it prevent a state or other authority from making its own decision under its laws. DOJ guidance contemplates referral and coordination with other authorities.
There is no nationally representative current declination percentage established here. The Office of Justice Programs catalogs a study of federal declination and charge-change decisions using Federal Justice Statistics Program data from 2002–2010; that study period is not a current national rate.
Common questions about the process
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 prosecution; after review, prosecutors can choose among further investigation, prosecution, referral, diversion or another noncriminal disposition, and declination.
Does probable cause guarantee charges?
No. DOJ calls probable cause a minimum threshold for federal prosecution, but says meeting it does not automatically warrant prosecution.
Can prosecutors ask investigators to do more?
Yes. Further investigation is one of the options in DOJ guidance, and prosecutors may seek more work rather than decide immediately whether to charge.
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Can a federal declination be followed by state charges?
It can be considered separately by another authority with jurisdiction. A federal decision alone neither establishes that state charges will be brought nor bars them.
Quick Recap
Sources and scope
- U.S. Department of Justice, Justice Manual, Principles of Federal Prosecution (including §§ 9-27.110, 9-27.200, and 9-27.260).
- U.S. Department of Justice Office of the Inspector General, audit report, used for its explanation of factors reflected in the Justice Manual, not for a current declination rate.
- Office of Justice Programs, study record on prosecutorial discretion in federal criminal cases, describing data from 2002–2010.
- Cornell Legal Information Institute, “Prosecutorial discretion”, for general terminology.
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