by Claude Opus 5.5
What ethical standards should govern a prosecutor’s decision not to charge? Is “insufficient evidence” a purely technical judgement?
In the case behind these seminars, the county district attorney reviewed the police file in 2024–25 and declined to bring charges, reportedly relying on a signed statement in which the complainant’s drug use and sexual conduct were described as voluntary and consensual. Her lawyer disputes that the statement reflects what she said. In September 2026, after public pressure, the case was reopened, and the state Attorney General has now been appointed special prosecutor. The district attorney has publicly defended the original decision. The episode raises a basic question about prosecutorial ethics: what should guide a decision not to charge, and is the usual justification, “insufficient evidence”, as neutral as it sounds?
The standards prosecutors use
In England and Wales, the Crown Prosecution Service applies the Full Code Test. A prosecution may proceed only if there is a realistic prospect of conviction on the evidence (the evidential stage) and a prosecution is in the public interest (the public interest stage). In the United States, standards vary by jurisdiction, but professional guidance such as the American Bar Association’s Criminal Justice Standards says prosecutors should not bring charges unless they believe there is sufficient admissible evidence to support a conviction. In both systems, a decision not to charge on evidential grounds is meant to reflect a professional prediction about what a court would do.
Why the standard makes sense
A high charging standard protects the accused. Being charged with a serious crime can destroy reputations, careers and relationships even if the person is later acquitted. Prosecutors should not inflict that harm unless they have good reason to think a conviction is achievable.
It also protects complainants. A trial that ends in acquittal can be devastating for a complainant, who may feel she has not been believed. Bringing a weak case can do more harm than good.
And it uses limited resources responsibly.
Why “insufficient evidence” is not purely technical
Yet the judgement that evidence is insufficient involves much more than technical skill.
It depends on how evidence is interpreted. A statement can be read in different ways. Whether a description of conduct as “voluntary” means the complainant consented, or only that she was not physically forced, is a matter of interpretation. A prosecutor who reads it one way may conclude that there is no case; another may see a strong one.
It depends on how thorough the investigation was. If key witnesses were not interviewed, if the accused were never questioned, or if relevant records were never obtained, then “insufficient evidence” may reflect gaps in the investigation rather than the strength of the case. Reports suggest that some of these gaps may have existed here.
It depends on predictions about juries. A prosecutor estimating the chance of conviction must predict how jurors will react. In sexual offence cases, jurors may be influenced by myths about how “real” victims behave, about intoxication, or about delayed reporting. If prosecutors simply defer to those predicted attitudes, they may decline to bring cases that should be tried, reinforcing the very myths that make conviction difficult.
It involves values. Decisions about which cases to prioritise, how much investigative effort to invest, and how much risk of acquittal to accept all reflect judgements about the importance of different harms.
What ethical standards should apply?
Several principles follow.
Thoroughness. Before concluding that evidence is insufficient, prosecutors should ensure that reasonable lines of inquiry have been pursued: interviewing suspects, obtaining available records, and testing key evidence.
Interpretive humility. Where a crucial piece of evidence is open to more than one reading, prosecutors should not treat one reading as decisive without testing it.
Awareness of bias. Prosecutors should guard against relying on stereotypes about complainants or defendants, including in their predictions about juries.
Transparency and candour. Complainants should be told why a decision was made, in enough detail to understand it, and should have a way to seek review. In England and Wales, the Victims’ Right to Review scheme allows this.
Openness to reconsideration. New evidence, or recognition that an earlier decision was flawed, should lead to review.
For discussion
Should a prosecutor bring a case they think is more likely than not to fail, if they believe the complainant? Is it right for prosecutors to take account of how they think jurors will react? And who should review a prosecutor’s decision not to charge?