Generally speaking, a victim cannot force an unwilling prosecutor to file charges or seek an indictment from a grand jury. The prosecutor, exercising "prosecutorial discretion," has the final say.
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.
There are several reasons a prosecutor may choose not to pursue a criminal case.
Aside from practical considerations such as limited resources with which to prosecute cases, prosecutorial discretion also exists because of theoretical reasons, such as 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, 173 W.Va. 133 (W.Va., 1984))
Because prosecutorial discretion is a legitimate component of the prosecutor’s powers, there is usually very little a private person can do 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, 325 Wis.2d 664, 797 N.W.2d 341 (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, 173 W.Va. 133 (W.Va., 1984); Myers v. Frazier, 319 S.E.2d 782, 173 W.Va. 658 (W.Va., 1984)).
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 allows private prosecution. See the Nolo article, Filing A Criminal Complaint, for more information on the practice of private prosecutions.