The overwhelming number of prosecutions for violations of federal, state, and local laws are brought by agents of the federal or state government -- state prosecutors, district attorneys, and U.S. Attorneys. But suppose a prosecutor declines to file charges, despite the urging of a complaining victim? In some states, a private individual may file and prosecute criminal charges against another person for committing a crime against that individual.
As one of many English traditions exported to colonial America, private prosecutions predate the establishment of the United States. But the ability to prosecute privately does not apply in every state, nor does it extend to federal crimes. In 1981, the United States Supreme Court held that a private individual does not have a constitutional right to private prosecution. Because of this Supreme Court ruling, and because Congress has not passed laws providing for private prosecution, a private person does not have the right in federal court to prosecute an offense or hire an attorney to pursue a criminal case on the private person’s behalf. The laws of several states, however, permit a private person to initiate and prosecute another person for some criminal offenses; or hire a private attorney to do the same.
(Leeke v. Timmerman, 454 U.S. 81 (1981))
Private Prosecutions and State Law
In the states where private prosecutions are allowed, state law provides the legal authority for the private individual to pursue a criminal case against another person. The state law can be either a law passed by a state legislature, or the authority can be found in a state court’s judicial decisions, referred to as the state’s common law.
In New Hampshire, the right to privately prosecute a case is found in the state’s common law, not in the state’s statutes. The state’s courts recognized the validity of private prosecutions by citing the state constitution’s provision that retains the laws practiced in New Hampshire’s colonial courts. The same constitutional clause provides that the common law practices remain in full force unless the state legislature alters or repeals the common law. The state legislature has not acted to repeal or restrict private prosecutions, so private prosecutions remain part of the state’s criminal justice system. New Hampshire’s courts, however, have limited the types of criminal cases that can be privately prosecuted (see below).
(N.H. Const. pt. II, art. 90)
While New Hampshire’s right to private prosecution is found in its common law, Pennsylvania’s authority for private prosecutions is contained within the state’s Rules of Criminal Procedure. In Pennsylvania, a person filing a criminal complaint must have the complaint approved by the state prosecutor in order to proceed with the private prosecution. If the state prosecutor disapproves a private complaint, the prosecutor must state on the complaint the reasons for disapproval. The private person may appeal the state prosecutor’s disapproval to Pennsylvania’s Court of Common Pleas.
(In re Private Crim. Complaints of Rafferty, 969 A.2d 578 (2009); 234 Pa. Code Rule 506)
Limitations on Private Prosecutions
Although forms of private prosecution exist in several states, the power of a private person to prosecute a criminal case against another person is limited. Private prosecution may be limited by a state’s courts, legislature, or both.
While New Hampshire courts have recognized a citizen’s right to pursue private prosecution where the official prosecutor has declined to proceed, New Hampshire’s state courts have also limited the types of crimes that can be privately prosecuted. In 2002, the state’s Supreme Court ruled that private prosecutions can be initiated only for offenses that do not carry a possible penalty of imprisonment. For minor offenses that carry onlya potential fine as punishment, a person may seek private prosecution.
(State v. Martineau, 808 A.2d 51, 148 N.H. 259 (N.H., 2002))
On January 8, 2014, a member of New Hampshire’s House of Representatives introduced a bill authorizing private prosecution for Class A and Class B misdemeanors and nonviolent Class B felonies. Under the bill, these offenses would be treated as Class B misdemeanors when the criminal complaint is filed by a private prosecutor. A class B misdemeanor conviction carries a maximum possible fine of $1,200 but no potential jail time.
(N.H. Stat. §§ 625:9, 651:2; N.H. House Bill 1257)
In addition to limiting the types of offenses that can be pursued by a private prosecutor, states retain an oversight role in determining which private prosecution cases can move forward once initiated. Unlike in Pennsylvania, a person filing a private criminal complaint in New Hampshire does not have to first obtain the permission of the state prosecutor; however, state prosecutors in New Hampshire retain the power to dismiss private criminal complaints.
(State by Tucker v. Gratta, 133 A.2d 482 (N.H., 1957))
Private Criminal Affidavits & Petitions
Other states’ laws allow a private person to initiate the criminal process, but leave the prosecution of such actions to government attorneys. In Ohio, for example, a private person can file an affidavit with a reviewing official (a judge, a magistrate, or the prosecuting attorney). If the affidavit alleges the commission of a felony, the reviewing official will issue an arrest warrant unless the official finds the allegations to be unfounded. If an arrest warrant or citation is issued, the case proceeds in the same manner as cases initiated by law enforcement, with the state prosecutor for the jurisdiction pursuing the case.
(Ohio Rev. Code §§ 2935.09, 2935.10)