A district attorney files criminal charges by reviewing the evidence police have gathered, deciding whether it meets the probable cause standard and is worth pursuing, and then either filing a written charging document called a complaint or information directly with the court or presenting the case to a grand jury for an indictment. That decision belongs to the prosecutor’s office alone. Police recommend, victims report, judges rule on what comes next, but the choice to charge sits with the DA.
How the Case Gets to the DA
Charges don’t start with the prosecutor. They start with police. Officers secure the scene, interview witnesses, collect physical evidence, and build a case file that usually includes a recommended charge. When the investigation reaches a stopping point, law enforcement refers the file to the DA’s office for review.
If the prosecutor thinks the file is thin, the office can send it back for more investigation before making any charging decision. Nothing requires the DA to accept what police put in front of them.
How the DA Decides Whether to Charge
Prosecutors have what’s called prosecutorial discretion: the authority to pursue a case, adjust the specific charges, or decline prosecution altogether. Most of the real decision-making happens here, and it’s less mechanical than people expect.
The legal floor is probable cause, meaning a reasonable basis to believe a crime occurred and that the suspect committed it. Probable cause sits well below the beyond-a-reasonable-doubt standard needed for conviction, and the Supreme Court has noted it can rest on evidence that wouldn’t even be admissible at trial.1Constitution Annotated. Amdt4.5.3 Probable Cause Requirement
Clearing that floor is only the start. Prosecutors also weigh whether the evidence will hold up through trial, whether key witnesses are credible and cooperative, whether physical evidence was collected properly, and whether the suspect has a prior record. Beyond those tactical questions, the DA considers the broader interests of justice: the severity of the offense, the circumstances involved, and whether an alternative like a diversion program makes more sense than a prosecution.
Diversion Instead of Charges
In some cases, the DA offers diversion in place of formal charges. If the accused agrees to certain conditions, such as supervision, community service, or treatment, the prosecutor holds off on charges or dismisses them upon completion. In federal cases, the accused must waive speedy trial protections and acknowledge responsibility, though that acknowledgment is not a legal admission of guilt. Diversion typically applies to first-time offenders facing lower-level charges and usually happens before a grand jury returns an indictment.
Filing by Complaint or Information
The most direct way a DA files charges is by drafting a complaint or an information and filing it with the court. A complaint is a written statement of the essential facts of the alleged offense, made under oath before a judge.2Legal Information Institute. Federal Rules of Criminal Procedure Rule 3 – The Complaint An information is similar but usually comes after the initial complaint stage, particularly for felony cases where the defendant waives the right to a grand jury.
In federal court, misdemeanors are prosecuted this way as a matter of course. Felonies can be prosecuted by information too, but only if the defendant appears in open court, is advised of the charges and their rights, and voluntarily waives the right to a grand jury indictment.3Federal Rules. Federal Rules of Criminal Procedure Rule 7 State courts follow broadly similar patterns, with details that vary by jurisdiction.
Filing by Grand Jury Indictment
The second method is presenting the case to a grand jury, a group of citizens who review evidence in private and decide whether probable cause exists to charge someone. The Fifth Amendment requires a grand jury indictment for all federal felonies, prohibiting anyone from being held to answer for a “capital, or otherwise infamous crime” without a grand jury’s approval.4Constitution Annotated. U.S. Constitution – Fifth Amendment
That federal requirement does not extend to the states. The Supreme Court held in 1884 that due process does not mandate grand jury proceedings in state prosecutions.5Justia. Hurtado v California, 110 US 516 Roughly half the states require grand jury indictments for serious felonies; the rest let prosecutors file by information.
Grand jury proceedings look nothing like a trial. The prosecutor presents evidence and calls witnesses. The defense has no right to be present, cross-examine anyone, or introduce its own evidence. If the grand jury finds probable cause, it issues an indictment. If not, it returns a “no bill,” and the case does not move forward through that path. The design is meant to serve as a citizen check on prosecutorial power, though critics point out that the prosecutor controls the process almost entirely.
A preliminary hearing is a separate proceeding, held in open court after charges are filed, where a judge decides whether probable cause exists to send the case to trial. It’s not how charges get filed; it’s what can follow a filing by complaint.6Legal Information Institute. Federal Rules of Criminal Procedure Rule 5.1 – Preliminary Hearing
How Long the DA Has to File
Prosecutors can’t sit on a case indefinitely. Two kinds of deadlines apply.
The statute of limitations sets an outer boundary measured from when the crime occurred. For most federal offenses, that window is five years. Capital offenses and certain other serious crimes have no statute of limitations at all. State time limits vary widely, with violent felonies generally carrying longer windows than property crimes or misdemeanors.
A second constraint kicks in after an arrest. Under the federal Speedy Trial Act, an indictment or information must be filed within 30 days of the defendant’s arrest or service of a summons, and the trial must begin within 70 days after charges are filed.7Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions Various exceptions and exclusions apply for things like competency evaluations and pretrial motions, so actual calendar time is often longer. States have their own speedy trial rules with different timelines.
What Happens After Charges Are Filed
Once a complaint or indictment is filed, the court needs the defendant in front of a judge. If the complaint establishes probable cause, the judge issues either a summons ordering the defendant to appear on a specific date, or an arrest warrant authorizing law enforcement to take the person into custody. Warrants are used when the offense is serious or the defendant might flee.8Legal Information Institute. Federal Rules of Criminal Procedure Rule 4 – Arrest Warrant or Summons on a Complaint
The first formal court appearance is the arraignment. The court confirms the defendant has a copy of the indictment or information, reads the charges or states their substance, and asks the defendant to enter a plea.9Legal Information Institute. Federal Rules of Criminal Procedure Rule 10 – Arraignment Bail or pretrial release conditions are typically addressed at this stage as well.
Filing is not the end of the story. Prosecutors can dismiss an indictment, information, or complaint with the court’s permission; dismissal during trial requires the defendant’s consent.10Federal Rules of Criminal Procedure. Federal Rules of Criminal Procedure Rule 48 – Dismissal They can also file a superseding indictment that replaces the original with new or modified charges, adding counts based on new evidence, dropping weaker ones, or restructuring the case. Charges also shift during plea negotiations, where a defendant pleads guilty to a lesser offense in exchange for the prosecution dropping more serious counts.
Who Can and Can’t Force the DA’s Hand
One of the most common misconceptions in criminal law is that victims “press charges.” They don’t. The charging decision belongs to the prosecutor. A victim who wants prosecution cannot compel it, and a victim who wants a case dropped cannot force the DA to dismiss it.
Victims do have process rights. Under the federal Crime Victims’ Rights Act, victims can confer with the prosecutor and must be informed of any plea bargain or deferred prosecution agreement. Prosecutors must also advise victims that they can seek their own attorney for guidance on those rights. Most states have parallel provisions. But the law is explicit that these rights do not impair the prosecutor’s discretion over the final charging call.11GovInfo. 18 USC 3771 – Crime Victims Rights
A decision not to charge is, for practical purposes, almost unreviewable. No court can force a prosecutor to bring a case, and there is no formal appeal for victims or police who disagree. A declination doesn’t necessarily mean the case is dead permanently, though. If new evidence surfaces before the statute of limitations expires, the prosecutor can revisit the decision. And a county DA’s declination doesn’t prevent a federal prosecutor from filing charges if the conduct also violates federal law, and vice versa.