Who Files for Criminal Action?

Criminal cases deal with laws that violate society’s rules, and conviction often results in jail time. Almost all other legal disputes are handled in civil courts.

Law enforcement officers interview witnesses and the person of interest, evaluate and document crime scenes, and arrange for forensic exams, trace evidence, and veterinary examinations.


The prosecutor, also called the district attorney, state’s attorney, county attorney, or commonwealth’s attorney, represents the government in criminal prosecution. A prosecutor’s primary mission is to serve the public interest by seeking justice within the bounds of the law. This means both protecting the innocent and convicting the guilty and considering the interests of victims and witnesses. Prosecutors must have integrity, balanced judgment, and sound legal training.

In addition, a prosecutor must be sensitive to the facts of each case and abide by all laws, rules, and ethical opinions regarding conflicts of interest. A prosecutor should report all but the most frivolous allegations of misconduct to a supervisor, and reasonable efforts should be made to promptly investigate and resolve those complaints. In the event a conflict of interest is not waivable or cannot be addressed by an adequate waiver, the prosecutor should recuse from further participation in the matter until such time as a non-conflicted prosecutor or appropriate waiver has been secured.

During the course of representation, prosecutors must make a full and fair record by promptly responding to written requests for discovery; requesting evidentiary hearings; making objections or placing explanations on the record in court; arguing motions; proffering evidence; and making jury instructions. In addition, a prosecutor must be prepared to respond to questions regarding legal authority at any point in a trial and should provide the defense with a copy of all relevant laws and cases.

While it may be appropriate to offer generalized commentary as a media source when the statement does not risk prejudicing a specific criminal proceeding, a prosecutor should never speak on behalf of a specific case or individual victim without prior authorization from their supervisor. Prosecutors should only offer such commentary in a way that demonstrates a reasonable effort to be well-informed about the specific facts and governing law.


The defendant is the person accused of a crime in criminal cases. The defendant must prove their innocence in a trial by a judge or jury. The burden of proof in a criminal case is higher than in a civil lawsuit. The prosecution must convince the judge or jury that the defendant committed the alleged crime beyond a reasonable doubt.

Unlike in a civil court, victims do not bring a complaint against the defendant to initiate a criminal proceeding. Only a government attorney, such as the district attorney, prosecutor, or county attorney, can file criminal charges against an individual. The victim’s testimony can help the district attorney decide whether to charge a crime. The district attorney may also choose to pursue a civil action instead of or in addition to a criminal prosecution.

Law enforcement, which includes police officers, sheriffs, investigators, and animal control officers, will gather evidence and interview witnesses. They will also evaluate the crime scene, take photographs, and analyze traces and scientific evidence such as DNA.

Once the prosecutor has sufficient evidence, they will request that the judge or magistrate issue a warrant to arrest the defendant. They will then notify the defense of the charges and allow them to meet with their attorney. At a preliminary hearing, the prosecutor will present their evidence to the judge, and the defendant’s attorney, and both sides are allowed to cross-examine witnesses. If the judge establishes probable cause, the defendant will be bound for trial.

At this stage, the defendant’s attorney can begin to request discovery from the prosecution, which consists of any documents, records, or statements provided by the prosecution that are relevant to the defense, such as witness names and contact information. They can also make motions, which are requests for rulings about a specific legal question before, during, or after a trial.


Witnesses provide information to the prosecutor and defense attorneys, which becomes part of the evidence in a case. Their testimony helps determine whether the accused actually committed a crime. Witnesses can be called to testify in person or by video link. In either event, they must be prepared to give their testimony under oath and not omit any facts. Lying under oath is a crime known as perjury, and it’s something that every witness should avoid at all costs.

There are different types of witnesses, ranging from fact witnesses who testify about what they saw to expert witnesses who can offer opinions about the case. A character witness can provide details about the defendant or victim, such as their personality and reputation. Character witnesses can be important in a case because they can help establish a motive for the crime, but they are not considered to be part of the direct evidence that is used to prove guilt.

Some witnesses may hire an attorney to represent them before giving their testimony. In addition to helping them prepare, an attorney can also ensure that the witness doesn’t incriminate themselves. It’s also important to remember that the prosecutor and defense attorney do not represent a witness; they each have their own clients.

Many witnesses are afraid to testify because they fear physical, psychological, or emotional reprisals from the criminal community. If a witness is worried about their safety, the court can exceptionally allow them to be interviewed without being present in the same room as the accused. The judge must balance the witness’ concerns against the defendant’s right to hear any incriminating testimony. In some cases, the judge might allow a witness to testify via video link if it’s necessary for a fair trial.


There are several types of evidence available to support a criminal case, including testimony from witnesses and physical objects such as weapons or documents. A prosecutor may also rely on circumstantial evidence, which tends to prove a defendant is guilty without direct proof of his or her guilt. For example, the prosecutor may present circumstantial evidence that a witness who testified in one part of a trial was not telling the truth about another aspect of the case.

Prosecutors should carefully consider the evidence before deciding whether to file charges. In particular, they should not file charges that are more severe than can be proven at trial or that might deter persons from seeking civil, regulatory, or private remedies. Moreover, they should not condition a dismissal of charges or a nolle prosequi on the accused’s relinquishment of his or her right to seek civil redress unless the accused has given informed consent, and such consent is disclosed to the court.

After the prosecutors study the results of an investigation and gather information from talking with victims, they decide if there is sufficient evidence to present the case to a grand jury. Grand juries are groups of impartial citizens who listen to evidence of criminal allegations and vote in secret whether to bring formal charges against a person. Prosecutors should be transparent about the grand jury process and explain that it is not a substitute for their own legal judgment.

A prosecutor should be present at all initial appearances of the accused and at any pretrial hearings. They should also ensure that the accused is made aware of his or her right to counsel and provide reasonable opportunity for that counsel to be obtained. In addition, they should be courteous and civil in their interactions with judges and defense counsel and cooperate with those parties to develop solutions for ethical, scheduling, or other issues that may arise in specific cases or the criminal justice system in general.


A criminal defendant can defend himself or herself through a variety of means. They may try to poke holes in the prosecutor’s case, argue that another person committed the crime, or claim that they made a mistake of fact or law. For example, they may argue that they were unaware of the victim’s consent to engage in sexual intercourse and therefore did not commit a crime.

They can also attempt to use the defense of coercion. This involves arguing that someone else forced them to do something against their better judgment, such as participating in an illegal enterprise with an organized crime family. Hollywood movies such as The Godfather, Goodfellas, and The Departed often portray mafia members using coercion to entrap people into committing crimes.

In some cases, the defendant will waive the right to a grand jury and have a federal prosecutor file charges in a document called an Information. This is generally done in order to get the case ready for trial faster and avoid unnecessary delays. On their attorney’s advice, clients may also agree to waive the 70-day deadline for an indictment and have a judge hear the case without a jury.

The burden of proof is higher in a civil claim than it is in a criminal case. A successful civil claim usually results in monetary compensation paid to the plaintiff.

A civil claim can also prompt a criminal investigation, but it cannot initiate criminal charges. This is because a criminal case requires the participation of state or federal law enforcement officials, and these individuals must follow strict rules regarding how they gather and process evidence. If they violate these rules, the defendant can argue that the evidence is inadmissible at trial.