Prosecutorial discretion generally refers to the authority of a prosecuting officer or agency (United States Attorney or state District Attorney) to decide what if any criminal charges to bring against a person or persons, and what punishment or sentence to seek. Prosecutorial discretion may also be used by a police officer, for example, in deciding whether to issue a driver a speeding citation (ticket) or a warning.

Prosecutors generally have broad authority to make such decisions—subject to the right of the citizens to remove them from office, directly or indirectly, in the voting or election process.

In Delaware, as in other states, prosecutorial discretion is a fundamental aspect of the criminal justice system. This discretion allows state prosecutors, such as the Attorney General or local District Attorneys, to determine whether to charge an individual with a crime, what charges to file, and what penalties to seek. This discretion extends to decisions about plea bargaining, dropping charges, and recommending sentences. Prosecutorial discretion is guided by considerations of legal merit, resource allocation, and public interest. While prosecutors have this discretion, they are also subject to checks and balances, including ethical guidelines, oversight by courts, and ultimately, accountability to the public through elections. Police officers in Delaware also exercise a form of prosecutorial discretion when deciding whether to issue citations or warnings for minor offenses like speeding. The exercise of this discretion is expected to be fair, consistent, and free from discrimination, although it is inherently subjective and can vary from case to case.