Initiating and Declining Prosecution—Probable Cause Requirement

If the attorney for the government concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction, he/she should consider whether to:

Request or conduct further investigation;

Commence or recommend prosecution;

Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;

Decline prosecution and commence or recommend pretrial diversion or other non-criminal disposition; or

Decline prosecution without taking other action.

Comment.

JM 9-27.200

sets forth the courses of action available to the attorney for the government once he/she concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction. The probable cause standard is the same standard required for the issuance of an arrest warrant or a summons upon a complaint (

see

Fed. R. Crim. P. 4(a)), and for a magistrate's decision to hold a defendant to answer in the district court (s

ee

Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury.

See

Branzburg v. Hayes

, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may instead be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provisions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions or other measures as well.

[cited in

JM 9-10.060

;

JM 9-2.031

]

[updated February 2018]