The Formal Charging Process

Fundamentals of Procedural Law by Adam J. McKee

The formal charging process is a critical phase in the U.S. criminal justice system. This is when a prosecutor, after reviewing evidence collected during an investigation, decides what charges, if any, to file against a suspect.

Charging Decisions

The formal charging process is pivotal to the U.S. criminal justice system, and prosecutors play a crucial role. As officials of the court, their function extends beyond securing convictions to promoting justice and upholding public interest (ABA Standards, 1993). Using their judgement, legal expertise, and often considerable discretion, prosecutors evaluate several factors to make their decision.

An essential part of their role involves assessing the strength of the evidence collected during the investigation. Evidence may include witness testimonies, physical or forensic evidence, surveillance footage, and more. These elements must form a coherent narrative and meet the legal standard of ‘probable cause’—a reasonable belief that the suspect has committed the crime.

Prosecutors also consider the seriousness of the alleged crime. For instance, a violent felony will be given more attention and resources than a minor misdemeanor. The seriousness of the offense can influence the choice of charges, the resources allocated to the prosecution, and the proposed plea deals.

Public interest is another key consideration. Prosecutors, as representatives of the community’s interests, often have to weigh the societal impact of pursuing a case. This might involve considering factors such as community safety, the costs associated with a trial, or the potential for rehabilitation or recidivism.

Upon deciding to file charges, prosecutors may do so through three main types of charging documents: a complaint, an information, or an indictment.

A complaint is usually the first document filed in a criminal case and is typically used for less serious offenses. It’s a sworn statement outlining the alleged facts of the case and establishing probable cause.

An information is a formal charging document, similar to a complaint, but it’s used in felony cases. The prosecutor writes and files an information, which also sets out the facts of the case and asserts probable cause.

An indictment, on the other hand, is used in federal felony cases and some state cases. Unlike the complaint and information, which prosecutors prepare, an indictment is issued by a grand jury. This group of citizens reviews the prosecutor’s evidence and determines whether there is enough evidence to formally charge the suspect and proceed to trial.

Each charging document and procedure has different requirements and implications. Therefore, the prosecutor’s decision on how to charge a suspect is a critical part of the criminal justice process. Their choices can profoundly impact the direction and outcome of a case.

Bordenkircher v. Hayes (1978)

In Bordenkircher v. Hayes, the Supreme Court explored the limits of prosecutorial discretion in the charging process. The defendant, Paul Hayes, was initially indicted on a forgery charge. The prosecutor warned Hayes that if he did not plead guilty, he would re-indict him as a habitual criminal, a charge that came with a mandatory life sentence due to Hayes’s prior convictions. Hayes refused to plead guilty and was subsequently re-indicted and convicted as a habitual criminal.

The legal issue here concerned the constitutional limits on prosecutorial discretion in charging decisions and whether the prosecutor’s actions violated Hayes’s due process rights under the Fourteenth Amendment. The Supreme Court upheld the prosecutor’s actions, reasoning that the mere act of prosecuting a legally punishable offense does not violate the Constitution, even if the prosecutor uses the threat of more severe charges to induce a guilty plea (Bordenkircher v. Hayes, 434 U.S. 357).

United States v. Batchelder (1979)

In United States v. Batchelder, the Supreme Court affirmed a broad prosecutorial discretion to choose between two overlapping criminal statutes, each carrying a different penalty. Here, the defendant was charged under a statute with a more severe penalty. The court held that, as long as the law did not discriminate based on arbitrary classifications, it did not violate the Equal Protection Clause of the Fourteenth Amendment (United States v. Batchelder, 442 U.S. 114).

United States v. Armstrong (1996)

In United States v. Armstrong, the defendants argued that the prosecutor’s decision to charge them was racially discriminatory, violating their rights under the Equal Protection Clause. However, the Supreme Court maintained that defendants must demonstrate clear evidence of discriminatory effect and intent to substantiate such a claim (United States v. Armstrong, 517 U.S. 456).


The formal charging process is an integral part of the criminal justice system. It is primarily controlled by prosecutors who exercise significant discretion. While these decisions can dramatically impact a defendant’s life, they are generally upheld by courts unless there is clear evidence of constitutional violations such as discriminatory intent.


American Bar Association (ABA) Standards for Criminal Justice: Prosecution and Defense Function. (1993). Third Edition.

Bordenkircher v. Hayes, 434 U.S. 357 (1978).

United States v. Batchelder, 442 U.S. 114 (1979).

United States v. Armstrong, 517 U.S. 456 (1996).


Modification History

File Created:  08/08/2018

Last Modified:  07/24/2023

[ Back | Content | Next]

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License



Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.