What are the principles used by DOJ to decide if someone should be prosecuted?

The following is a simplified version of Part IIIA of the Durham Report, “Principles of Federal Prosecution.”

The Principles of Federal Prosecution are a set of guidelines that the U.S. Department of Justice uses to decide whether to prosecute someone. The principles include:

• Determination to prosecute: The attorney for the government should only prosecute someone if they believe that the person’s conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.
• Substantial federal interest: The attorney for the government should only prosecute someone if the prosecution would serve a substantial federal interest. This includes considering factors such as the nature and seriousness of the offense, the deterrent effect of prosecution, and the person’s culpability.
• Most serious, readily provable offense: If the attorney for the government decides to prosecute someone, they should charge and pursue the most serious, readily provable offense.
• Unpopularity: The likelihood of an acquittal due to the unpopularity of the prosecution is not a factor prohibiting prosecution.
• Interests of uncharged parties: Federal prosecutors should be sensitive to the privacy and reputation interests of uncharged third parties. They should not identify or cause a defendant to identify a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.

The Principles of Federal Prosecution are designed to ensure that the U.S. Department of Justice only prosecutes people who have committed serious crimes and that the prosecution is in the best interests of the public.

Simplified by artificial intelligence and edited and organized by Dr. Dannielle Blumenthal. All opinions are the author’s own.