criminal-law criminal-procedure prosecutorial-discretion prosecution burden-of-proof
In American criminal law, do prosecutors who seek to prosecute a defendant need to have evidence of the defendant&#39;s guilt beyond a reasonable doubt?
<p>Would the judge in a criminal trial consider a prosecutor's statement that some evidence is representative of a defendant's guilt is a <em>false statement</em> by seeking the evidence to be inferred as <strong>conclusive</strong> without being thoroughly tested?</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>The ethical standard for U.S. prosecutions, under <a href="https://www.cobar.org/Portals/COBAR/Repository/12.1.22/Rule%203.8%20-%20Special%20Responsibilities%20of%20a%20Prosecutor.pdf?ver=h4k_BG_0T1kn7Rdgo8sLiQ%3D%3D" rel="nofollow noreferrer">Rule of Professional Conduct 3.8</a> (ethical rules have parallel numbering in every U.S. jurisdiction and there is little variation from jurisdiction to jurisdiction for this part of this ethical rule) is to refrain from prosecuting a charge that is not supported by probable cause.</p>
<p>Probable cause is also the standard used by a grand jury, and in an adversarial pre-trial hearing, to screen charges before they go to trial. It is also the standard for issuing an arrest warrant.</p>
<p>The higher threshold of proof beyond a reasonable doubt is the standard for convicting a defendant at a trial on the merits of the defendant's guilt or innocence, it is not the standard for bringing a criminal charge in the first place. The job of the prosecutor at trial is to convince the trier of fact (usually a jury, but sometimes a judge in a bench trial) that the defendant is guilty beyond a reasonable doubt. If the case was thin on evidence when commenced, this may require law enforcement and the prosecutor's office to develop evidence after the criminal charges are brought.</p>
<p>As a practical matter, a prosecutor wants to prosecute cases that can be proven beyond a reasonable doubt at trial, and will usually try to do that. But a belief that a case can be proven beyond a reasonable doubt at trial is not an ethical requirement for prosecutors and is not a ground for imposing sanctions against a prosecutor. Of course, individual prosecuting attorneys' offices are free to establish their own standards that are more rigorous as an internal policy for bringing criminal cases.</p>

<p>Answer according to the OP's comment:</p>
<blockquote>
<p>The question is in the title. Focus on answering the question...</p>
</blockquote>
<p>Namely:</p>
<blockquote>
<p>In American criminal law, do prosecutors who seek to prosecute a defendant claim to have evidence of the defendant's guilt beyond a reasonable doubt?</p>
</blockquote>
<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p><strong>SHORT ANSWER</strong></p>
<p>Although still used occasionally by some, &quot;<em>beyond a reasonable doubt</em>&quot; is not a prosecutor's benchmark.  It is a colloquial courtroom phrase (more often than not you will now hear &quot;<em>must be sure that the defendant is guilty</em>&quot; these days).</p>
<p>It  Instead, the criterion applied is whether there is &quot;<em>sufficient evidence to provide a realistic prospect of conviction and if so, is a prosecution in the public interest?</em>&quot;</p>
<p><strong>LONG ANSWER</strong></p>
<p>The Crown Prosecution Service (CPS) decide whether or not to charge a suspect<sup>1</sup> by applying one of two tests depending on the circumstances:</p>
<p><a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer"><strong>The Full Code Test</strong></a></p>
<p>This is applied in the majority of cases, and has two stages:</p>
<ul>
<li>The Evidential Stage</li>
</ul>
<p>The relevant extracts are:</p>
<blockquote>
<p>Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge [<em>or a judicial finding they did the relevant act but are not guilty by reason of insanity</em>]</p>
<p>A case which does not pass the evidential stage must not proceed</p>
<p>[it] is based on the prosecutor’s objective assessment of the evidence [which] means that an objective, impartial and reasonable jury [etc] is more likely than not to convict the defendant of the charge alleged. <strong>This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty</strong></p>
</blockquote>
<ul>
<li>The Public Interest Stage</li>
</ul>
<p>The prosecutor must consider a number of factors, including: the seriousness and circumstances of the offence, the suspect's age and culpability, whether a prosecution is a proportionate response, and whether sensitive intelligence sources need protecting.</p>
<p><a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer"><strong>The Threshold Test</strong></a></p>
<p>This test is applied when an immediate charging decision is required, but the Full Code Test cannot be satisfied as there are outstanding enquiries or evidence to be collected.</p>
<p>There are five conditions to satisfy for this test to be applied:</p>
<ul>
<li><p>There are reasonable grounds to suspect that the person to be charged has committed the offence</p>
</li>
<li><p>Further evidence can be obtained to provide a realistic prospect of conviction</p>
</li>
<li><p>The seriousness or the circumstances of the case justifies the making of an immediate charging decision</p>
</li>
<li><p>There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so</p>
</li>
<li><p>It is in the public interest to charge the suspect</p>
</li>
</ul>
<hr />
<p><sup>1</sup>For completeness, the police also have a limited power to charge a suspect without CPS advice.</p>
<hr />
<p><sub>Although the title references &quot;<em>American criminal law</em>&quot;, I have answered according to the <a href="https://law.stackexchange.com/help/on-topic">LawSE Help Centre</a>: &quot;<em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot;</sub></p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Charging decisions are at the core of prosecutorial discretion and cannot be challenged for the reason you posit</h3>
<p>A criminal indictment or the decision to charge <strong>cannot be challenged</strong> on the basis that the prosecutors did not possess evidence proving the offence beyond a reasonable doubt. That is a matter left to the conclusion of the trial.</p>
<p>The decision to bring a charge is at the core of prosecutorial discretion. See <a href="https://www.canlii.org/en/ca/scc/doc/2011/2011scc34/2011scc34.html" rel="nofollow noreferrer"><em>R. v. Nixon</em>, 2011 SCC 34, para. 21</a>:</p>
<blockquote>
<p>Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following:  (a) <strong>the discretion whether to bring the prosecution of a charge</strong> laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether...</p>
<p>Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for.  Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. ...</p>
</blockquote>
<p><strong>The decision to charge can only be reviewed for <em>abuse of process</em></strong> which asks (<em>Nixon</em>, para. 40):</p>
<blockquote>
<p>whether “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious”</p>
</blockquote>
<h3>Crown prosecution offices <em>do</em> consider the likelihood of conviction when deciding whether to charge</h3>
<p>Provinces each have their own charging policies, but British Columbia's is a typical example. A charge will generally not be brought unless there is a substantial likelihood of conviction and the public interest requires a prosecution (see <a href="https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf" rel="nofollow noreferrer">Crown Charge Assessment Guidelines</a>). In exceptional cases, charges may be approved on a lesser standard of &quot;a reasonable prospect of conviction.&quot; In making these assessments, prosecutors need not be themselves convinced beyond a reasonable doubt, but are directed to <em>consider</em> the &quot;prosecution’s burden of proof beyond a reasonable doubt.&quot;</p>
<h3>Proof beyond a reasonable doubt is not a standard that can be determined by someone other than the trier of fact</h3>
<p>See <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1543/index.do" rel="nofollow noreferrer"><em>R. v. Lifchus</em>, [1997] 3 S.C.R. 320</a></p>
<ul>
<li>the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;</li>
<li>the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;</li>
<li>a reasonable doubt is not a doubt based upon sympathy or prejudice;</li>
<li>rather, it is based upon reason and common sense;</li>
<li>it is logically connected to the evidence or absence of evidence;</li>
<li>it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and</li>
<li>more is required than proof that the accused is probably guilty ‑‑ a jury which concludes only that the accused is probably guilty must acquit.</li>
</ul>
<p>The following should be avoided:</p>
<ul>
<li>describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;</li>
<li>inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;</li>
<li>equating proof “beyond a reasonable doubt” to proof “to a moral certainty;</li>
<li>inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;</li>
<li>qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”,  “substantial” or “haunting”, which may mislead the jury; and</li>
<li>instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.</li>
</ul>

<p>First off your title/question is missing a word (often, need, something between defendant and claim).  Reading the body of your post, I presume you mean need…</p>
<p>Prosecutors don’t need to state any degree of certainty or particular evidence in their charging documents.  They don’t even need to believe a particular defendant is guilty — it’s legal to prosecute multiple people for the same crime at the same time, using the same evidence of each, and leave it up to a jury to decide, which if any are the “true” criminal.</p>
<p>They need to have some evidence, but it needs not be conclusive or even particularly compelling.</p>
<p>And it pretty much has to be that way, in order to avoid corruption. If they had to be “right” every time or they lost their job or even their freedom, there would be nigh irresistible pressure to <strong>be</strong> right, whatever that required.</p>
<p>Malicious prosecution is a crime, and one I would support lowering the bar to prosecute, but mere innocence of the accused or the lack of sufficiently convincing evidence is insufficient to support punishing the prosecutor that in good faith fails to get a conviction.</p>

<h2>Beyond Reasonable Doubt <em>is</em> an <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/onus_and_standard_of_proof.html" rel="nofollow noreferrer">objective standard</a></h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<blockquote>
<p>Proving the accused’s guilt beyond reasonable doubt is the standard of proof the Crown must achieve before you can convict [him/her] and <strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong> When you finish considering the evidence in the trial and the submissions made by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt.</p>
</blockquote>
<p>You may have some confusion because the trier of law will not provide the trier of fact with any further explanation beyond “<strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong>” Its possible that your confusion stems from some of the questions on this site where some OPs are seeking an empirical standard or further elaboration: there isn’t any - “<strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong>”</p>
<p>The obligation on the trier of fact is not to determine what “proof beyond reasonable doubt” means but to decide if the evidence before them meets that standard. What an appeals court is required to do is determine if, considered in the best possible light, the evidence would convince a reasonable jury of proof beyond a reasonable doubt.</p>
<h2>Charges</h2>
<p>A prosecutor should bring charges when they believe there is a reasonable chance of conviction. That is, they have evidence that they believe will convince most juries of guilt beyond a reasonable doubt. Jury’s vary - some are easier to convince than others, but an experienced prosecutor has encountered all kinds and has a good feel of when they have a case and when they don’t.</p>
<p>Of course, the prosecutor must make this decision without knowledge of the case the defendant will run. Therefore, good prosecutors make allowance for this and lay charges when the evidence is overwhelming, not just sufficient.</p>
<h2>Indictment</h2>
<p>In any event, except for summary offences (misdemeanours), the prosecutor has to convince a judge or grand jury that they have enough evidence. To do this, they present their case completely unchallenged by the defence. That is, they get to show the evidence in the best possible light. If that doesnt convince the judge or grand jury, then they don’t get to go forward.</p>

<p>At federal trial: to achieve a conviction the prosecutor must prove (i.e. persuade or convince the trier-of-fact) the defendant is guilty beyond a reasonable doubt.</p>
<p>To bring the case to trial: the prosecutor must (among other things) believe the admissible evidence will probably (i.e. more likely than not) be sufficient to obtain and sustain a conviction.</p>
<p>Federal <a href="https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution" rel="nofollow noreferrer">Justice Manual Title 9 9-27.220 - Grounds for Commencing or Declining Prosecution</a></p>
<blockquote>
<p>The attorney for the government should commence or recommend federal
prosecution if he/she believes that the person's conduct constitutes a
federal offense, and that the admissible evidence will probably be
sufficient to obtain and sustain a conviction, unless (1) the
prosecution would serve no substantial federal interest; (2) the
person is subject to effective prosecution in another jurisdiction; or
(3) there exists an adequate non-criminal alternative to prosecution.</p>
<p>Comment. JM 9-27.220 sets forth the longstanding threshold requirement
from the Principles of Federal Prosecution that a prosecutor may
commence or recommend federal prosecution only if he/she believes that
the person will more likely than not be found guilty beyond a
reasonable doubt by an unbiased trier of fact and that the conviction
will be upheld on appeal. Evidence sufficient to sustain a conviction
is required under Rule 29(a) of the Federal Rules of Criminal
Procedure, to avoid a judgment of acquittal. Moreover, both as a
matter of fundamental fairness and in the interest of the efficient
administration of justice, no prosecution should be initiated against
any person unless the attorney for the government believes that the
admissible evidence is sufficient to obtain and sustain a guilty
verdict by an unbiased trier of fact. In this connection, it should be
noted that, when deciding whether to prosecute, the government
attorney need not have in hand, at that time, all of the evidence upon
which he/she intends to rely at trial, if he/she has a reasonable and
good faith belief that such evidence will be available and admissible
at the time of trial. Thus, for example, it would be proper to
commence or recommend a prosecution even though a key witness may be
out of the country, so long as there is a good faith basis to believe
that the witness's presence at trial could reasonably be expected. ...</p>
</blockquote>
<p>With regard to the prosecutor's belief about the prospect of conviction, other common law jurisdictions have similar requirements.</p>
