The term “prosecution” may be used to mean two different things in the context of criminal law. In this article, we provide both definitions of the term “prosecution,” as well as offer information about how prosecution is commenced and what the duties of the prosecution are. 

Key Takeaways

• Prosecution is the action of commencing a criminal charge 
• Prosecution is also a term used to refer to the prosecutor (the government or the district attorney)
• Prosecution is commenced with indictment, complaints, arraignments, arrest warrants, and/or bench warrants
• The prosecutor in a criminal trial may refer to their side as the prosecution with statements such as “the prosecution rests”
• The prosecution, referring to the prosecutor, has a number of legal duties including the duty to serve the public interest, protect the innocent and convict the guilty, and respect the constitutional and legal rights of all persons

What Is Prosecution?

In criminal law, the term “prosecution” is used to refer to two different things.

The first definition of prosecution is the action of commencing a criminal charge, i.e. to prosecute somebody. Prosecution for an offense is commenced when any of the following occur:

• An indictment of information is filed
• A complaint is filed charging a misdemeanor or infraction
• The defendant is arraigned on a complaint that charged the defendant with a felony
• An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint 

Second, the term prosecution is also used to refer to the prosecutor, or the agent in charge of initiating a prosecution. This is usually referred to as a district attorney. As such, the term “prosecution” can be used to refer to the government during a criminal trial. For example, the prosecutor may make a statement such as, “the prosecution rests” or “the prosecution will present five witnesses.”

Duties of the Prosecution

The primary duty of the prosecution is to seek justice within the bounds of the law, not to merely convict. They must serve the public interest, aiming to increase public safety by both pursuing appropriate criminal charges and not pursuing inappropriate criminal charges. They must protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including both suspects and defendants.

The prosecution also has other duties such as:

• Knowing and abiding by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction
• Making use of ethical guidance offered by existing organizations
• Being knowledgeable about and considering alternatives to prosecution or conviction that may be applicable in individual cases
• Considering broad goals of the criminal justice system