A Moral Standard for the Prosecutor's Exercise of the Charging Discretion

The prosecutor's decision to institute criminal charges is the broadest and least regulated power in American criminal law. The judicial deference shown to prosecutors generally is most noticeable with respect to the charging function. This Essay discusses three hypothetical cases that present both realistic and recurring challenges to the prosecutor's charging power. The first case depends on a factual determination of a witness's reliability.

The second case depends on a factual determination of the witness's truthfulness. The third case revolves around a legal determination regarding the applicability of a defense. Together, these cases provide a setting in which a moral standard is proposed to guide the prosecutor's discretion.