Some criminal cases brought to a prosecutor might not result in criminal charges being filed. A prosecutor may decline to proceed with a case for various reasons, such as insufficient evidence, an uncooperative witness, or a violation of the suspect’s constitutional rights.

Understanding the Prosecutor’s Decision

Several factors influence a prosecutor’s decision to file criminal charges. In Texas, elected county attorneys, district attorneys, and criminal district attorneys prosecute local criminal cases.

One factor that comes into play is the police report and any other paperwork submitted by officers from the law enforcement agency that arrested the suspect. Then, a prosecutor normally looks at whether further investigation is required, whether officers acted appropriately in their arrest or investigation, and what the victim or witnesses told investigators.

Ultimately, a prosecutor must determine if the evidence supports the suspect’s guilt beyond a reasonable doubt. In other words, the evidence that a prosecutor considers must be stronger than the “probable cause” standard that officers apply when making the arrest.

In deciding whether to file charges, a prosecutor looks at factors such as:

• Whether the evidence is sufficient
• How legal issues or defense strategies could affect the case
• Whether any evidence is suppressed (not allowed to be part of the case)
• Whether to use their own discretion to weigh details about the suspect or circumstances of the case
• Whether not pursuing a less serious case might be preferable to pursuing a more serious case
• Whether a witness refuses to cooperate

A prosecutor may even decline to file charges due to limited resources.

For example, the U.S. district attorney’s office in the District of Columbia decided in 2022 to not prosecute 67% of suspects arrested by officers in cases that would have been tried in D.C. Superior Court, according to the Washington Post. D.C.’s top federal prosecutor cited several reasons for declining to file charges, such as the city’s crime lab being unaccredited.

In general, according to the U.S. Justice Department, federal prosecutors decide against filing charges in cases when:

• Prosecution would serve “no substantial federal interest.”
• The suspect could be more effectively charged by a state or local prosecutor.
• There’s “an adequate non-criminal alternative” to pursuing prosecution.

Key Components of the Prosecutor’s Decision

Several components that go into a prosecutor’s decision against filing criminal charges are described below, from the quality of the evidence and the seriousness of the alleged crime to the behavior of arresting officers and the strength of the defense attorney’s case.

Insufficient Evidence

A lack of sufficient evidence can prompt a prosecutor to reject criminal charges against a suspect.

First and foremost, a prosecutor must demonstrate that a suspect is guilty “beyond a reasonable doubt” to be confident about filing charges. If there’s insufficient evidence, a prosecutor may not be able to make a strong argument for guilt when presenting a case to a trial jury, trial judge, or grand jury.

Examples of weak evidence or a lack of evidence include:

• No crucial physical evidence, such as the gun used to commit a murder
• No DNA evidence connecting the suspect to the crime
• DNA evidence indicating someone else committed the crime
• Evidence that the suspect was somewhere else when the crime occurred, such as images of the suspect entering or exiting a subway car
• A confession from someone other than the suspect
• Evidence was collected without a search warrant being issued

Legal Issues or Defenses

Legal issues and defense strategies can also keep a prosecutor from proceeding with criminal charges.

Among the legal issues that could lead a prosecutor to decline filing charges include:

• The case involves a minor, nonviolent crime
• Arresting officers violated the suspect’s rights
• The victim asks that charges not be filed
• The suspect agrees to pay damages to the victim to avoid prosecution
• The prosecutor asks a lower-level suspect to testify against a higher-level suspect in exchange for not being charged

Solid defense strategies also can discourage a prosecutor from filing charges.

Because a prosecutor must prove the guilt of a defendant beyond a reasonable doubt, a well-crafted defense might dismantle a prosecutor’s case. For example, let’s say a suspect is accused of assaulting someone. If the defense can prove the suspect was acting in self-defense, the prosecutor might drop the case or might not even pursue charges in the first place.

Other defense strategies that might weaken a prosecutor’s case and perhaps lead to no charges being filed include:

• Arresting officers violated the suspect’s constitutional rights by, for instance, not reading the suspect their Miranda rights
• Police officers entrapped the suspect, meaning they forced the suspect to commit a crime that they wouldn’t ordinarily commit
• The suspect has a strong alibi. For instance, evidence shows the suspect eating at a restaurant at the time that the alleged crime occurred
• The suspect was protecting their property from being damaged or destroyed
• The suspect was coerced into committing an alleged crime

Suppressed Evidence

Sometimes, a judge suppresses evidence that could be critical to a prosecutor’s case.

A prime example of this: Authorities violated a suspect’s rights by obtaining evidence through an unlawful search and seizure, meaning the evidence was collected without a search warrant. For example, if police open a safe in a suspect’s home and find a gun they believe was used to commit a murder, the evidence would be suppressed if the weapon was discovered during a search conducted without a search warrant issued by a judge.

Another example: The prosecutor tries to introduce evidence that fell out of the so-called “chain of custody.” This could be a DNA sample that was inaccurately labeled or a seized gun that was not properly stored, for instance. In both of these situations, the evidence might be unreliable because it was tampered with. Therefore, the prosecutor may be unable to proceed with criminal charges.

Prosecutorial Discretion

As the Nolo.com legal website explains, a prosecutor might have a strong case, yet they may “take a broader perspective” to determine whether to file charges. This broader perspective might include taking a close look at the suspect and the circumstances of the case, along with factors related to public safety and justice.

A prosecutor who exercises prosecutorial discretion might consider:

• The strength of the evidence
• The likelihood that the case would result in a conviction
• The suspect’s background, such as the presence or lack of a criminal record
• The cooperation or lack of cooperation of a suspect or witness
• The suspect’s presence or lack of remorse
• The victim’s wishes
• The potential trauma of victims or witnesses being ordered to testify at a trial
• Bias or improper conduct on the part of law enforcement officers
• The severity of the crime (whether it’s a felony or misdemeanor)
• Alternatives to prosecution that still would punish the defendant

“This discretion allows prosecutors to tailor their approach to individual cases,” according to FindLaw.com.

FindLaw.com explains that a plea bargain is a common result of prosecutorial discretion.

“A plea bargain involves the defendant agreeing to plead guilty to a lesser charge. In exchange, they often receive a lighter sentence. This process helps manage caseloads, reducing strain on the court system. It also allows for a more efficient resolution of criminal cases,” says FindLaw.com.

Small Fish, Big Fish

In some instances, a prosecutor might prioritize a case against a “big fish” vs. a case against a “small fish.” This could impact the prosecutor’s decision about whether to file charges against the “small fish.”

Under this scenario, a prosecutor might grant immunity against prosecution to a “small fish” (perhaps a drug runner) in exchange for their testimony against a “big fish” (perhaps the leader of a drug-trafficking ring). By going after the “big fish” rather than the “small fish,” the prosecutor may be seeking to deter crime by sending a strong message to other “big fish” criminals and the entire community.

Alternative Resolutions: Plea Bargains or Diversion Programs

If a prosecutor chooses not to file charges against a suspect, they might pursue alternatives such as a plea bargain or a diversion program.

A plea bargain is an agreement between a prosecutor and a defendant resulting in the pleading guilty to gain a less serious charge, fewer charges, or a more lenient sentence. Sometimes, a plea bargain might be reached so that the defendant testifies against another defendant, perhaps one who’s facing a more serious charge.

A prosecutor also might allow a defendant to enter a diversion program, resulting in charges not being filed or being dismissed. This enables the defendant to keep a criminal conviction off their record if they go through a rehabilitation program and serve probation. Diversion can be a common practice when a defendant faces charges for a minor first-time offense.

Policy Considerations and Public Interest

Policy considerations and the public interest can also influence a prosecutor’s decision not to file charges.

Policy considerations might involve state mandates, for example. In Texas, a state law took effect in September 2023 that reins in local prosecutors’ discretion regarding which types of cases they choose not to charge.

The new law allows the courts to remove district attorneys for misconduct if they decide not to pursue certain types of crimes. 

In addition, some prosecutors’ offices have policies related to certain types of crimes, often in response to community and political pressures, that affect how various cases are handled. For instance, a prosecutor might impose a rule that bans the prosecution of minor marijuana cases. Or a prosecutor may decide that plea bargains aren’t permitted in DWI cases.

In 2019, Dallas County District Attorney John Creuzot announced his office would no longer prosecute thefts of personal items under $750 that are stolen out of necessity, a decision that was unpopular with law enforcement officials.

“I’ve been in criminal justice for 37 years, and I’ve seen people steal because they’re hungry, and I’ve seen the system react where the cases are dismissed or react in a more harsh manner where incarceration is requested,” Creuzot told the Texas Tribune. “But the reality of it is putting a person in jail is not going to make their situation any better.”

Legal Rights of the Accused

So, what are the legal rights of an accused person if a prosecutor chooses not to file charges?

If a prosecutor decides not to pursue charges against someone over an alleged crime, this typically results in the case being closed. However, the case might be resurrected later if, for instance, new evidence comes to light and the statute of limitations hasn’t expired. The statute of limitations generally lasts longer if the alleged crime is a felony rather than a misdemeanor.

Even though the case technically is closed, public records will note the suspect’s arrest but will also cite the decision not to file charges.

Keep in mind that a prosecutor deciding not to pursue charges isn’t the same as charges being dropped or dismissed. Charges can be dropped before or after charges are filed, while charges can be dismissed only after charges are filed. While these actions would close a case, a prosecutor might decide later to pursue fresh charges.

Possible Reopening of Cases

In some instances, a prosecutor might reopen a case after initially choosing not to file charges. For example, a case might be resurrected after new evidence surfaces that implicates the original suspect.

However, a prosecutor can file charges after initially not filing charges only if the statute of limitations has not expired. Each state has its own statute of limitations that prevent someone from being charged with a crime after a certain period. The window of time for a statute of limitations typically opens after the date of the alleged crime.

For many misdemeanors and felonies in Texas, the statute-of-limitations period expires after anywhere from two to 10 years. However, there’s no statute of limitations in Texas for these crimes:

• Murder
• Manslaughter
• Nonconsensual sexual assault with penetration
• Sex crimes involving children
• Child trafficking
• Compelling prostitution of a child younger than 18 years

If a charge was filed but the case was later dismissed, the case can be reopened only if the charge was dismissed “without prejudice.” If the case was dismissed “with prejudice,” it can’t be reopened.

Legal Representation and Consequences of Non-Prosecution

Because criminal law is complicated, a suspect should always seek advice from a defense attorney. This advice might include whether to pursue a plea bargain that could result in a charge not being filed, a charge being dropped, or a charge or sentence being reduced. In addition, an attorney can determine whether a prosecutor who decides not to file a charge could later reopen the case and file a charge.

FAQs About Prosecution Decisions

Why Would a Prosecutor Choose Not to Prosecute a Case?

A prosecutor might choose not to file charges in a case for a variety of reasons, such as a lack of strong evidence or the mishandling of evidence.

Can a Case Be Reopened if the Prosecutor Initially Decides Not to Prosecute?

A prosecutor generally can reopen a case if a charge wasn’t originally filed. However, the case can’t be reopened and a charge can’t be filed if the statute of limitations has expired after, say, two years for a misdemeanor case or 10 years for a felony case.

What Are Common Reasons for Rejection or Dismissal of a Criminal Case?

Common reasons for rejection or dismissal of a criminal case include an absence of sufficient evidence, a lack of cooperation by a key witness or violation of the suspect’s constitutional rights.

How Does the Refusal of Charges Contrast With Dismissal?

Refusal of charges refers to a prosecutor deciding against going forward with a criminal case, while dismissal of charges refers to a judge throwing out a case that was prosecuted.

What Factors Contribute to the Weakness of a Criminal Case?

Among the factors that contribute to the weakness of a criminal case are an absence of sufficient evidence, an illegal arrest or a lack of reliable witnesses.