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 a few 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 U.S. 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 a few 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. 83 (1981).)
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 authority can be found in a statute or court rule or in a state court’s judicial decisions (referred to as common law).
Common law authority. 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 a state constitutional 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. (N.H. Const. pt. II, art. 90.) The state legislature has not acted to repeal or restrict private prosecutions, so private prosecutions remain part of the state’s criminal justice system. (State v. Rollins, 533 A.2d 331 (N.H. 1987).) New Hampshire’s courts, however, have limited the types of criminal cases that can be privately prosecuted (see below).
Statutory or rule authority. Pennsylvania’s authority for private prosecutions can be found 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 Rafferty, 969 A.2d 578 (2009); Pa. R. Crim. P. 506.)
Although forms of private prosecution exist in some 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, they've 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 only a potential fine as punishment, a person may seek private prosecution. (State v. Martineau, 808 A.2d 51 (N.H. 2002).)
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 v. Smith, 49 N.H. 155 (1870).)
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 (2020).)
If you believe you're a victim of a crime but the prosecutor’s office or the police have informed you they will not pursue the case, contact a local attorney for a consultation about your rights and options.