Prosecutorial discretion

In common law, the principle of prosecutorial discretion allows public prosecutors a wide latitude to decide whether or not to charge a person for a crime, and which charges to file. A similar principle in continental law countries is called the principle of opportunity.

There is a divide between countries where prosecutions are generally discretionary and where prosecutions are mandatory (known as the legality principle or compulsory prosecution). In addition, in some countries prosecutors operate independently with more discretion vs in a hierarchical system that require more conformity.

Countries following civil law are predominately based on the principle of compulsory prosecution, although the principle of opportunity is encoded in law in the Netherlands, Germany, Sweden, Slovenia, Belgian law and France. Some similar provisions exist in and in Estonian law.

By country

United States

In the United States federal system, the prosecutor has wide latitude in determining when, who, how, and even whether to prosecute for apparent violations of federal criminal law. The prosecutor's broad discretion in such areas as initiating or forgoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. Prosecutors may decide not to press the charges even when there is probable cause, if they determine that there is no reasonable likelihood of conviction. Prosecutors may dismiss charges in this situation by seeking a voluntary dismissal or nolle prosequi.