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Knowledge section

Prosecution

This section covers the prosecution function: the decision to bring or not to bring a criminal charge, the standards applied to that decision, the relationship between prosecutors and investigators, and the duties prosecutors owe to the court and to the accused.

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Foundational guides in this section, in reading order.

  • Why is the decision to bring a criminal case a public function?

    Someone has to decide whether the state’s case should proceed, and the choice of who has consequences. Placing it in a public office separates it from the people who investigated, from the person harmed, and from the court that will decide.
    About 9 minutes to read

  • What has to be true before a criminal charge is brought?

    There is no universal charging test. Germany obliges its prosecutors to act on sufficient factual indications; other systems apply an evidential assessment and a public-interest judgement; some give local prosecutors broad discretion with no national standard at all.
    About 9 minutes to read

  • If prosecutors are independent, who holds them to account?

    Independence and accountability answer different questions, so a system can provide both. What varies is the mechanism — hierarchy, court consent, reporting, published standards, or an office that must stand for election.
    About 8 minutes to read

  • Is a prosecutor a party to the case, or something else?

    Several systems impose duties that cut against winning — establishing what exonerates as well as what incriminates, and disclosing material that damages the prosecution’s own case. Those duties are national, and this page attributes each to its source.
    About 8 minutes to read

  • Does a country have one prosecution service, several, or none?

    All three answers occur. Spain has a single national body; Germany has offices attached to every court and no national service; the United States has federal prosecutors and separately organised state and local prosecution; Nigeria places the power in serving ministers.
    About 10 minutes to read

  • Are judges and prosecutors the same profession, entered the same way?

    In France they are one corps, recruited by one examination, and an organic law states that every magistrat has a vocation to serve in both functions during a career. In England and Wales they are separate professions, and a prosecutor is an employed lawyer.
    About 7 minutes to read

  • What does a prosecutor do?

    A prosecutor decides whether a criminal case should be brought, on what charges, and presents it in court. This guide explains the tests applied, the duties owed, and how the role differs between systems.
    About 8 minutes to read

Key ideas

What makes this area difficult to understand from the outside.

  • The charging decision is a filter, not a formality

    Prosecution services typically apply both an evidential test and a public-interest test. Cases that fail either are not brought, including cases where the prosecutor believes the person is probably guilty.

  • Discretion is deliberate and constrained

    The power not to prosecute is as significant as the power to prosecute. It is normally structured by published guidance and is reviewable, precisely because unstructured discretion is where inconsistency and improper influence enter.

  • Independence from the executive varies enormously

    In some systems the prosecution service is constitutionally separate; in others it sits within a ministry of justice; in others prosecutors are judicial officers. Assuming one arrangement is the norm produces serious misreadings of other countries.

  • A prosecutor is not the victim’s lawyer

    Prosecutors act for the public interest. They consult victims and in many systems have duties towards them, but they do not represent them, and the distinction matters when a case is discontinued.

  • Disclosure duties cut against the prosecutor’s own case

    Prosecutors are generally obliged to disclose material that undermines their case or assists the defence. Failures of disclosure are one of the most common documented causes of wrongful conviction.

How this varies internationally

The prosecution function is one of the most structurally variable parts of any justice system. Terminology from one country rarely transfers safely to another. Several countries have no national prosecution service at all: Germany places an office at every court, and the United States runs federal prosecution alongside separately organised state and local prosecution. Nor is there a universal charging test — Germany’s code obliges its prosecutors to act on sufficient factual indications and asks nothing about the prospects of conviction.

What this section does not cover

Stated explicitly. Scope discipline is a reader service, and in some cases an editorial safety rule.

  • Commentary on live or recent cases
  • Named prosecutions or prosecutors
  • Advice to anyone facing a charge

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