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Key Facts
- National overview: A prosecutor is a government lawyer who represents the public in criminal proceedings.
- Federal level: U.S. Attorneys prosecute federal criminal cases and also handle civil litigation involving the United States.
- Federal level: Federal prosecutors exercise discretion over whether to prosecute, which charges to select, plea agreements, and sentencing positions under Department of Justice policy.
- California state level: California law makes each district attorney the public prosecutor within the county.
- Professional standards: Prosecutors have responsibilities beyond seeking convictions, including duties concerning probable cause and disclosure of information favorable to the defense.
A prosecutor is an attorney who represents a government in criminal matters. Depending on the jurisdiction, the office may be called a district attorney, state’s attorney, county attorney, prosecuting attorney, attorney general’s office, U.S. Attorney’s Office, or another title.
The title alone does not identify the prosecutor’s exact authority. Federal, state, county, tribal, and municipal systems assign responsibilities through different constitutions, statutes, court rules, and office structures.
What a criminal prosecutor does
A criminal prosecutor evaluates suspected violations, decides whether to initiate or continue a prosecution within the office’s authority, selects charges, appears in court, and presents the government’s position. The role can also include negotiating plea agreements and participating in sentencing.
Those functions occur at different stages. An investigation may begin with law-enforcement officers, while the prosecutor evaluates the available evidence and the legal basis for charges.
A prosecutor is not the defense lawyer. The prosecutor represents the government or public, while a defense attorney represents the accused person’s legal interests.
A prosecutor is also not the judge or jury. Charging and advocacy belong to the prosecution, while adjudication and sentencing belong to the court process defined by the governing law.
Federal prosecutors and U.S. Attorneys
Federal prosecutors enforce federal criminal law. U.S. Attorneys are the principal litigators for the United States under the direction of the Attorney General.
Title 28 U.S.C. § 547 directs each U.S. Attorney, within the district, to prosecute offenses against the United States. The statute also assigns the prosecution and defense of civil actions involving the United States and the collection of certain debts.
The Department of Justice has 93 U.S. Attorneys serving 94 federal judicial districts because one U.S. Attorney serves both Guam and the Northern Mariana Islands. Each U.S. Attorney is the chief federal law-enforcement officer within that federal district.
A federal prosecutor’s authority concerns federal law and federal jurisdiction; it does not make that lawyer the prosecutor for every state or local offense.
State and local prosecutors
State and local prosecuting offices act under the law that creates and governs the office. The title, geographic unit, selection method, and division of authority can differ by state.
California provides one concrete example. California Government Code § 26500 states that the district attorney is the public prosecutor and must attend the courts and conduct prosecutions for public offenses within the county, subject to specified exceptions.
That California rule is not a nationwide definition of every district attorney. It illustrates why the office’s enabling law must be checked before describing a particular prosecutor’s powers.
Prosecutorial discretion
Prosecutorial discretion is the authority to make choices within the law about enforcement and case handling. The Justice Manual states that a federal prosecutor has wide latitude in deciding when, whom, how, and whether to prosecute apparent federal violations.
The Department’s Principles of Federal Prosecution address initiating or declining prosecution, selecting charges, detention positions, plea agreements, non-prosecution agreements, and participation in sentencing. They are federal Department of Justice policies rather than a code governing every state prosecutor.
Probable cause is a threshold, not an automatic command to prosecute under the federal policy. The Justice Manual says that, after finding probable cause, the attorney for the government should still consider further investigation, prosecution, referral, diversion or another noncriminal disposition, or declining prosecution.
For commencing or recommending a federal prosecution, the Justice Manual additionally calls for a belief that the conduct constitutes a federal offense and that admissible evidence will probably be sufficient to obtain and sustain a conviction, unless a listed reason supports declining the case.
Those federal policies structure discretion but expressly do not create substantive or procedural rights enforceable by a party against the United States. State and local discretion must be evaluated under the applicable jurisdiction’s law and policy.
Charges, plea agreements, and sentencing
Selecting charges can shape the statutory penalties available in a case. The Justice Manual instructs federal prosecutors to make an individualized assessment when selecting charges and addresses special considerations for mandatory minimums and statutory enhancements.
A plea agreement is negotiated, but the prosecutor does not unilaterally enter a judgment. Federal policy recognizes charge agreements and sentence agreements, and departures or variances that are part of an agreement require court approval.
At federal sentencing, the attorney for the government should bring relevant facts and sentencing factors to the court’s attention and make recommendations in appropriate cases. The sentencing court remains responsible for imposing the sentence.
For a broader comparison of the courtroom roles, see defense versus prosecution.
The prosecutor’s ethical responsibilities
ABA Model Rule 3.8 sets out model professional responsibilities for a prosecutor in a criminal case. It is a model text rather than a compilation of every jurisdiction’s enacted professional rules.
The model rule says a prosecutor should refrain from prosecuting a charge known to lack probable cause. It also addresses the accused’s access to counsel and restrictions on seeking waivers of important pretrial rights from an unrepresented accused.
Model Rule 3.8 requires timely disclosure to the defense of evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense. It separately addresses unprivileged mitigating information at sentencing, subject to a protective-order exception.
The model rule also specifies responsibilities when a prosecutor learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense. The precise binding duty depends on the professional-conduct rules, constitutional law, statutes, and court decisions applicable in the jurisdiction.
Why prosecutors may reach different decisions
Federal policy calls for individualized assessment of the facts and circumstances. It also recognizes considerations such as the strength of admissible evidence, substantial federal interests, prosecution in another jurisdiction, and adequate noncriminal alternatives.
Different prosecuting offices also face different laws, evidence, jurisdictional limits, and enforcement priorities. A decision by one office does not establish what another sovereign or district must do.
A jurisdiction-specific definition matters
The most accurate prosecutor definition is therefore functional and jurisdiction-specific: a government attorney authorized to represent the public in criminal proceedings, with powers and duties supplied by the law and rules governing that office.
