I'm the Victim of a Crime. Can I Force the Prosecutor to Press Charges?

Most of the time, prosecutors have the final say when it comes to filing charges or asking a grand jury for an indictment. Political or public pressure sometimes changes their minds.

By , Contributing Author

Generally speaking, a victim cannot press charges nor force an unwilling prosecutor to file charges or seek an indictment from a grand jury. The prosecutor, exercising "prosecutorial discretion," has the final say.

Prosecutorial Discretion

The concept of prosecutorial discretion is well established in America's criminal justice system. In any criminal investigation, a prosecutor chooses which charge or charges to file or seek from a grand jury. A prosecutor also has the discretion to refrain from filing any charges at all.

A prosecutor may choose not to pursue a criminal case for several reasons.

  • Political pressure. Prosecutors are attorneys employed or contracted by federal, state, and local governments to prosecute suspected criminal offenders on behalf of the community they represent. Because the role of top prosecutor is an elected position in many jurisdictions, prosecutors may face political pressure to prosecute or refrain from prosecuting a person suspected of committing a crime.
  • Limited resources. Prosecutors must carry out their duties to the public they represent, but like most public agencies and private businesses, resources are finite. A prosecutor may decide to make prosecution of certain offenses a priority, while offenses that are deemed lower priority might not be as vigorously pursued. In some instances, charges for lower-priority offenses may not be pursued at all because of budgetary or staff constraints.
  • No likelihood of success. Prosecutors may decline to press charges because they think it unlikely that a conviction will result. No matter what the prosecutor's personal feelings about the case, the prosecutor needs legally admissible evidence sufficient to prove the defendant's guilt beyond a reasonable doubt. If the evidence isn't there (or likely to be suppressed before trial), proceeding with charges would be futile.

Aside from practical considerations, such as limited resources with which to prosecute cases, prosecutorial discretion also exists because of theoretical reasons, like the need to exercise restraint in the use of executive power and the fulfillment of our justice system's goal of giving the accused all reasonable doubts.

(State ex rel. Hamstead v. Dostert, 313 S.E.2d 409 (W.Va. 1984).)

Few Limitations on Prosecutorial Discretion

Because prosecutorial discretion is a legitimate component of the prosecutor's powers, a private person usually has very few options to force the prosecutor to act. Courts will not intervene to force the prosecutor's hand. Most of the time, if the case is sensational, public pressure is the best means of persuasion.

One very narrow approach may, however, be available to compel a prosecutor to file charges. This approach involves using a legal tool called a "writ of mandamus." Usable when a public official fails to take official action, a private person may seek this writ, which asks for a court order directing an official to perform a duty that the official is under a legal obligation to perform. A writ of mandamus, however, is not available in most jurisdictions to a person wanting to force a prosecutor to file criminal charges or seek an indictment from a grand jury. In these jurisdictions, a prosecutor's decision to not seek formal criminal charges is considered a permissible exercise of discretion, and a court will not order the prosecutor to act. (State v. Conger, 797 N.W.2d 341 (Wisc. Sup. Ct. 2010).)

Although most jurisdictions will defer to a prosecutor's decision not to pursue a criminal case, at least one state allows a person to seek a writ of mandamus to compel a prosecutor to file charges. In West Virginia, the state's case law has recognized the prosecutor's right to exercise discretion in deciding which charges to file or whether to pursue a case at all; however, the state's courts have also recognized that the state constitution requires prosecutors to vindicate the public and victims' rights. Therefore, where probable cause exists that a person committed a crime but the prosecutor has failed to act, a victim or any member of the public may seek a writ of mandamus to force the prosecutor to pursue criminal charges against a suspect.

(State ex rel. Hamstead v. Dostert, 313 S.E.2d 409 (W.Va. 1984); Myers v. Frazier, 319 S.E.2d 782 (W.Va. 1984).)

Alternatives Available to a Victim

In many jurisdictions where a prosecutor decides not to pursue a criminal case, the victim will have little recourse. Public pressure, aided by social media, may cause a prosecutor to reconsider the decision not to pursue a criminal case. Although in almost all jurisdictions a victim will not be able to obtain a court order requiring the prosecutor to act, a victim may hire an attorney to prosecute the suspect if the victim lives in one of the few jurisdictions that allow private prosecution. See the Nolo article, Filing A Criminal Complaint, for more information on the practice of private prosecutions.

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